What’s happening in employment law – a look back at 2015 and what’s ahead for 2016

With a number of legislative changes and a few key Employment Appeal Tribunal decisions during the course of 2015, it has been an interesting year in the employment law arena. This has in turn required some adjustments within the healthcare sector, particularly in terms of increasing family friendly rights. Jane Gilmour from Capsticks explains.
Shared parental leave
Shared parental leave and pay now exists to provide greater flexibility for parents in deciding how to share the care of their child in its first year. This has been available to couples whose baby was due or children placed for adoption from 5 April 2015.
Parents are now able to share the mother’s maternity leave and, if available, maternity pay. Shared parental leave is also available to employees who are, or expect to be, the parents of a child under a parental order, where the child’s expected week of birth begins on or after 5 April 2015.
Legislation to extend shared parental leave and pay to working grandparents is also intended to be brought into force by 2018.
Changes to statutory adoption leave and pay
The Paternity and Adoption Leave (Amendment) Regulations 2014 made significant changes to adoption leave. The 26-week qualifying period to be eligible to take adoption is now removed, bringing it into line with the eligibility requirements for maternity leave.
The Children and Families Act 2014 has brought statutory adoption pay into line with statutory maternity pay by setting it at 90% of average weekly earnings for the first six weeks.
Surrogate parents are also now eligible for adoption leave.
The Paternity and Adoption Leave (Amendment) (No 2) Regulations 2014 also introduced a new right for local authority parents who are prospective adopters to take adoption leave.
New right to take time off to attend adoption appointments
The Children and Families Act 2013 introduced a new right to attend adoption appointments. The main adopter will be able to take time off to attend up to five, while the secondary adopter will be entitled to take time off for up to two such appointments.
Child’s age limit for parental leave raised to 18
The statutory right to a period of unpaid leave that may be taken by a parent has been extended to parents with children up to 18 years old (previously up to five years old). Parents with sufficient qualifying service will have the right to 18 weeks’ unpaid parental leave up to the child’s 18th birthday.
Cap on redundancy pay for public sector workers
Under the new provisions in the Enterprise Bill, public sector workers’ exit payments will be limited to £95,000.
The key point for public sector employers to take from this is the breadth of different payments that will be covered under the cap. It will include not only regular compulsory redundancy payments, but also voluntary redundancy payments, pay in lieu of notice and pension top-ups.
The cap will sit alongside reforms being introduced via the Small Business, Enterprise and Employment Act 2015 to allow public-sector employers to claw back exit payments made to high earners who return to the same part of the organisation within 12 months.
Trade Union Bill
The Trade Union Bill is intended to fulfil part of the government's manifesto commitment to introduce measures to ‘restore confidence’ in trade unions, in particular by curbing what it sees as ‘disruptive and undemocratic’ strike action. It includes changes to the balloting rules for industrial action and measures on picketing, facility time, political donations and additional powers for the Certification Officer. The consultation closed in September 2015 and we expect the results of this in 2016.
The consultation included seeking views on a provision to allow employers facing industrial action to hire temporary workers from agency businesses who would then be able to perform some of the functions not being carried out due to industrial action. Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Regulation) currently prohibits employment businesses from providing agency workers to cover either the duties normally performed by an employee of an organisation who is taking part in a strike or other industrial action, or to cover work of employees who themselves are covering the duties of an employee taking part in a strike or other industrial action. This Regulation has somewhat reduced the flexibility of a hirer employer’s staffing options during industrial action, and has had a concurrent impact on the continuity and cost of business.
Caste discrimination to be unlawful
The consultation on proposed legislation making caste discrimination unlawful was planned to take place in the autumn of 2014 but has still not yet begun. In the meantime the EAT has held that race discrimination claims can include caste discrimination.
Holiday pay
The EAT’s decision this year in the case of Bear Scotland confirmed that the Working Time Regulations 1998 (the UK Regulations) were capable of being interpreted to require non-guaranteed overtime to be included in the calculation of holiday pay. Following this case, the Employment Tribunal in the case of Lock v British Gas ruled that the UK Regulations can be interpreted so as to include commission payments in the calculation of holiday pay also. However, this case was appealed and has recently been heard by the EAT, though the decision is not expected until 2016.
These cases are indicative of the trend towards a wider interpretation of ‘a week’s pay’. The principles in the case are likely to be followed in future cases on the calculation of holiday pay and the question of whether other supplements or premia should be included in the calculation.
Learning not Blaming
The Government has now published Learning not Blaming, which includes its response to the consultation process that followed Sir Robert Francis QC’s Freedom to Speak Up Review. Learning not Blaming deals in particular with the establishment of the Independent National Officer (INO) and the local Trust Freedom to Speak Up Guardians. The INO will have national responsibility for overseeing the new approach to raising concerns in healthcare, while the Freedom to Speak Up Guardians will have a key responsibility within NHS trusts for ensuring that trust staff can raise concerns in an appropriate, and supported, way.
Monitor, NHS TDA and NHS England are proposing to introduce a national whistleblowing policy to be adopted by all NHS organisations in England except for primary care providers. The draft policy covers who can raise a concern, the process for doing so, how the concern will be investigated and what will be done with the findings of the investigation. Consultation on the draft policy closed on 8January 2016. It is intended that NHS organisations will have their own local process that sits beneath the national policy, and reflects their own size and set up. Provided the local process adheres to the requirements set out in the national policy, there is room for flexibility locally.
National Living Wage
The national minimum wage was first introduced in April 1999. In the summer budget the government announced the introduction of a new national living wage (NLW) for workers aged 25 and above. The NLW will be introduced in April 2016 and will initially be set at £7.20 per hour, rising to £9 an hour by 2020.
 
Jane Gilmour, Senior Lawyer, Capsticks.