Looking ahead – Employment Law changes and cases in 2021 Before looking ahead to 2021 we want to share with you (if you didn’t already know) that we scooped the ‘Employment Law Award’ at the Yorkshire Legal Awards 2020.

Statutory maternity pay and other family-related statutory increases

Effective from – 4th April 2021

The Benefit and pension rates 2021/2022 policy paper sets out the proposed increases to the rates of statutory maternity pay, statutory paternity pay, statutory adoption pay, statutory shared parental pay and statutory parental bereavement pay from £151.20 to £151.97 per week.

Reform to IR35 legislation extending to include private sector

Effective from – 6th April 2021

New rules now mean that it will be your responsibility as the end user of the service to determine to determine whether the worker would be classed as an employee or self employed if the intermediary company did not exist.

Before making any payments after 6th April 2021, employers will have to provide a Status Determination Statement (SDS), failure to do so could leave you liable to payroll and & NIC payments.

HMRC have agreed to by bound to their updated Check Employment Status for Tax (CEST) tool as long as the results have not been manipulated for a favourable outcome. A main determination of the outcome will be whether an individual has an unfettered right of substitution and the level of mutuality between the parties.

You can read in more detail about the changes to IR35 Legislation here – https://consilialegal.co.uk/changes-to-the-off-payroll-working-rules-ir35/ HMRC powers to recover tax from parties other than employer in IR35 arrangements
Effective from – 6th April 2021

The Income Tax (Pay As You Earn) (Amendment No.3) Regulations 2020 (SI 2020/1150) provide that where an employer has not deducted income tax under PAYE from payments made to an off-payroll worker, and there is no realistic prospect of recovering the tax from the employer within a reasonable time frame, HMRC can recover the tax from other parties within chain, either the client for whom the work has been undertaken or the agency with which the client contracts.

Statutory sick pay rises

Effective from – 6th April 2021

The Benefit and pension rates 2021/2022 policy paper sets out the proposed increase to the rate of statutory sick pay from £95.85 to £96.35 per week. Cases to be aware of in 2021

Holiday entitlement and pay – Chief Constable of the Police Service of NI and others v Agnew

Currently an employer can rely on the Employment Appeals Tribunals decision in Bear Scotland that their liability for holiday pay to an employee is limited to the current holiday year. The Northern Ireland Court of Appeal has said that the decision in Bear Scotland was wrong.

The employers in the case have appeal to the UK Supreme court and this means if the Supreme Court agree with the ruling in the Northern Ireland Court of appeal, employees will be able to recover holiday payments going back to two years in England Scotland and Wales.

Part time workers’ rights – Brazel v The Harpur Trust
Currently, an individual who works on a term-time contract usually has their holiday entitlement pro-rated so that the number of holidays they are allowed, reflects the

number of weeks they have worked.

In Brazel, the Court of Appeal rule that a teacher who was employed on a term-time contract, was entitled to 5.6 weeks of holiday despite not working for the whole year. The employers in the case have appealed to the Supreme Court. If the Supreme Court agrees with this ruling, then many employers will have underpaid their staff.

National Minimum Wage – Mencap v Tomlinson-Blake
In Mencap, the Court of Appeal ruled that if a worker is providing sleep in cover, then they are not actually working and are only available for work. The CoA ruled that this

distinction meant that these workers were not entitled to national minimum wage when they are resting.

The case was heard by the Supreme Court in February 2020 but it is yet to release its judgement. If the Supreme Court reverses the decision of the CoA, it would mean the companies have been underpaying their staff and will be exposed to claims for underpaid wages which can go back six years. Companies can also be fined up to £20,000 by HMRC for every underpaid worker.

Collective bargaining – Kostal UK Ltd v Dunkley and Others
In Kostal, the CoA ruled that when negotiations for amendments to temporary changes to terms of employment have broken down between trade unions and employers, a

collective bargaining right cannot prevent an employer approaching staff to engage in their own separate negotiations.

This was a huge change to the current landscape where employers are liable to huge penalties if they incorrectly approach staff. The union has appealed, and this will be heard in May 2021.

Employment Status – Aslam v Uber

In July 2020, the Supreme Court heard the appeal from Uber that their drivers were workers and not categorised as self-employed. This gave Uber drivers more rights such as national minimum wage and paid leave entitlement. This was a huge ruling in the context of the developing culture of ‘gig-working’. Uber argued that its’ drivers were self-employed and that their service is a technology platform that puts the users (passengers) in touch with drivers.

The decision from the Supreme Court will provide guidance to employers and companies in the UK and help them decided whether a person is entitled to certain employment rights. It will also have a wide impact on the new ‘gig-economy’.

Disclaimer

• Please note – this guidance is not intended to be taken as legal advice – for individual situations you will need to take specific legal advice.
• This guidance should be read alongside the government’s own guidance.
• The information in this guide is correct as of 7th January 2021.

Marie Walsh

Director, Employment Solicitor and Mediator

Direct Dial 0113 8874670
Mobile 07736252681
Reception: 0113 3229222
Address: 4 Park Place, Leeds LS1 2RU

Victoria Horner
Senior Associate
Direct Dial: 01138874673

Andy Boyde
Employment Solicitor
Direct Dial: 0113 323 0346
Mobile: 07595 520 508