InsightsInsight - Employment & HR - POSTED: December 7 2018
Where are we likely to see an increase in employment claims in the next year?
Sarah Wimsett takes a look at what to expect from employment claims in 2019 – where are we likely to see an increase?
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- Employment Status
Whilst not a claim in itself, we are seeing a lot of claims which centre on entitlements/payments the claimant would have received had they been considered to be a ‘worker’ or employee. This may be for example the right to paid time off for holiday or the right to receive the national minimum wage.
It is clear from case law that what the parties agree about the status of employment is not binding and that equally, the tax treatment by the Revenue is not determinative of the employment law position.
Following the case of King v Sash Windows , it is likely that we will see arguments that, in regards to holiday pay, it should not be possible for a break in a series of deductions to prevent a successful claim or that there should be a backstop date. This highlights the risks to employers going forward of not properly considering employment status.
Whilst this remains a tricky area, employment status has traditionally not only relevant in terms of benefits but also in terms of the employer’s liabilities. However, we have seen this year confirmation that it is possible for liability to accrue where someone is not an employee or worker at all. We may, therefore, see increased cases in relation to liability for those under the control of the employer.
The #MeToo campaign has sparked nationwide conversation about harassment and discrimination in the workplace. On the 18 March 2018, we had the Turning the Tables on Sexual Harassment at Work report which highlighted that employers are not protecting their staff from sexual harassment in the workplace.
Whilst as a result of this report we may see mandatory duties on employers in the future, as well as possibly limiting the scope of settlement agreements, this report currently highlights a clear risk area for businesses that does not appear to be being tackled. A BBC survey in 2017 highlighted that 53 percent of women and 20 percent of men had been sexually assaulted at work.
Another area we are likely to see more claims in is disability discrimination particularly in regards to mental health. 56 percent of employers in a survey by charity MIND said they would like to do more to improve staff wellbeing but don’t feel they have the right training or guidance. This is again an area where failing to be proactive and providing staff training may lead to more claims.
It is also likely, particularly in light of Brexit fast approaching, that we will see a rise in race discrimination claims and unfair dismissal claims if employers are not clear on the rules around a person’s right to work in the UK. Cases have recently centred on an employer’s request to prove eligibility to work in the UK and how and when they ask for documents evidencing this. Particularly case law has shown that if a person is not able to produce acceptable documents, it should not be assumed prima facie that they are working illegally. Employers should make use of the guidance available through the Government websites and seek advice where there are uncertainties.
If you require any advice on defending an employment claim or future proofing your business, please contact a member of the Employment Team.
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