I INTRODUCTION

i The employment relationship

In the United Kingdom, the employment relationship is primarily an individual relationship between an employer and employee. The relationship is determined by a combination of the following: the underlying contract of employment between the employer and the employee; common law principles (such as the duty of care owed by an employer to an employee); and, most significantly, statutory rights and obligations, which cover, among other things, protection against dismissal, discrimination, minimum pay, working hours and holidays. As a common law jurisdiction, the interpretation of all these elements is largely a matter of case law.

There are also statutory (and to a lesser extent) common law provisions in respect of collective rights, such as those relating to industrial action, trade union rights recognition and even works councils. However, a decline in trade union membership together with the fact that statutory rights have predominantly focused on the individual, means that in the UK the employment relationship is far more focused on individual rather than collective rights: the role of employee representative bodies, although influential in the public sector and certain industries, is less of a factor than in many other European jurisdictions.

ii Jurisdiction to determine employment disputes

In the UK, specialist employment courts, known as employment tribunals, have exclusive jurisdiction to resolve most individual claims arising out of statutory employment rights. Employment tribunals only have very limited scope to hear employment disputes that do not relate to statutory claims. As such, many employment-related contractual disputes are resolved by general civil courts, including disputes about restrictive covenants and high-value bonus disputes.

There is also a specialist tribunal, the Central Arbitration Committee, responsible for resolving disputes about the recognition of trade unions and other employee representative bodies.

Finally, under UK law, there is scope for a company to seek to enjoin a strike and other forms of industrial action. Such action must be brought before general civil courts. The grounds for enjoining industrial action are generally based on a failure by a trade union to comply with procedural requirements (rather than any judicial determination on the merits of the dispute).

iii Key employment rights

In the UK, employees enjoy the following statutory employment rights (in addition to rights provided for in their contracts of employment).

Unfair dismissal

This is a statutory right not to be 'unfairly dismissed' (see further below).

Protection against discrimination because of protected characteristics

The Equality Act 2010 brought together and restated previous statutory provisions outlawing discrimination based on certain characteristics (protected characteristics). The protected characteristics are:

  1. age;
  2. nationality, race or colour;
  3. disability;
  4. gender reassignment;
  5. marital or civil partnership status;
  6. pregnancy and maternity;
  7. religion or belief;
  8. gender or gender identification; and
  9. sexual orientation.

Family-friendly rights

These include rights in respect of:

  1. paid adoption, maternity and paternity leave and shared parental leave for babies due or placed with them for adoption on or after 5 April 2015;
  2. parental leave (broadly an entitlement to up to 18 weeks' unpaid time off per child); and
  3. rights to request flexible working.

Protection of atypical workers

Part-time, fixed-term and agency workers all have rights that prevent them being treated less favourably than full-time, permanent employees especially in respect of their rate of pay and the benefits to which they are entitled.

Pay, hours and holiday

Employees (and other workers) enjoy rights to minimum rates of pay (see further below). There are also statutes relating to the number of hours that can be worked, breaks between work and paid holiday entitlement (see further below).

Protection against whistle-blowing

Employees and other workers enjoy the right to be protected against both detriment and dismissal by reason of being whistle-blowers.

Collective rights

There are detailed statutory provisions pertaining to: the rights of trade unions to be recognised; the circumstances in which industrial action is lawful; and the rights to establish domestic and European works councils (although little used). In addition, recognised trade unions have the rights to be informed and consulted, including in relation to collective redundancies, transfers falling under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) (see Section XIII) and certain changes to pension arrangements.

ii YEAR IN REVIEW

Brexit has continued to dominate the headlines and Parliament's attention. The UK gave formal notice to leave the EU on 29 March 2017. Last year we wrote in Section XIV that in 2018 we expected more clarity as to the type of relationship the UK will have with the EU and the impact that EU law will have on UK law, including any transitional arrangement and future trade deal. However, we are compelled to repeat this for 2019. At the time of writing, it is clear that no future trade deal will be struck in the immediate term, and it remains unclear if the UK will exit the EU on 29 March 2019, with the current withdrawal agreement (a document that sets out how the UK will exit the EU but does not include details as to the UK and EU's continuing relationship) still to be agreed and Parliament divided on the approach to take to Brexit.

The legislation that had most impact in 2018 was the General Data Protection Regulation ((EU) 2016/679) (GDPR), which came into force in May (see Section XI). The UK's Data Protection Act 2018 (DPA 2018), which repealed the prior legislation and supplements, incorporates the GDPR into UK law such that it will remain the law after Brexit. The GDPR brought about a range of changes that increase protections of individuals with respect to their data, including additional and broader data subject rights, such as rights of access to erasure and to portability. It has kept all businesses occupied in developing and implementing data protection compliance strategies to ensure their businesses are ready for dealing with the increased obligations set out under the GDPR. The attention that businesses have given to the legislation is also in part owing to the dramatic increase in the maximum applicable fine, which is now the higher of €20 million or 4 per cent of annual worldwide turnover. However, businesses also need to be mindful of individual and collection actions.

iii SIGNIFICANT CASES

Personal data protection was a particular focus of 2018 because of the GDPR. One of the most important decisions in 2018 that caused concern for employers was that of Wm Morrison Supermarkets Plc v. Various Claimants.2 In this case an employee had misused personal data belonging to 100,000 of Morrisons' employees. The actions of the employee were criminal as the employee intended to cause harm; however, Morrisons was held vicariously liable for the employee's actions. In response to the arguments advanced by Morrisons, the Court of Appeal considered that Morrisons should have had insurance in place to cover the liability and found that there was an unbroken chain of events meaning that the supermarket chain could be held vicariously liable. The motive of the wrongdoer (here the employee wanted to damage Morrisons deliberately) did not have a bearing as to whether Morrisons could be held vicariously liable. We understand Morrisons intends to appeal to the Supreme Court. However, the case shows the beginnings of what could become increased class action claims, particularly as these are expressly permitted by the GDPR.

There were also cases concerning individuals working in the gig economy and whether individuals are truly self-employed or whether they are, in fact, workers (which means they would have working time rights and the right to holiday pay). Regarding the latter, various cases over the past few years have held that the individuals in question are in fact workers. The cases continued this year. In Pimlico Plumbers Ltd and Mullins v. Smith,3 the UK Supreme Court confirmed the judgment of the Employment Tribunal, the Employment Appeals Tribunal and the Court of Appeal, in which Mr Smith as a plumber was named a 'worker' within the meaning of Section 230(3) of the Employment Rights Act 1996 and Regulation 2(1) of the Working Time Regulations 1998, and had been in employment for the purposes of Section 83(2) of the Equality Act 2010. Mr Smith's contract was the key element as there were tight controls over the administrative instructions of the control room regarding his job: he had to carry a Pimlico identity card, drive a Pimlico branded van and wear a Pimlico uniform. There were also strict terms as to when and how much Pimlico was obliged to pay him. Similarly, the prior decision in Addison Lee Ltd v. Mr C Gascoigne (that drivers were workers) was upheld.4 The current law does not adequately account for the multifarious flexible arrangements, and so it is expected that the forthcoming legislation will deal with this uncertainty (see Section XIV).

iv BASICS OF ENTERING AN EMPLOYMENT RELATIONSHIP

i Employment relationship

Although there are no formal requirements for a signed contract of employment, there is a statutory requirement for many of the main terms of employment (such as the identity of the employer, pay, working hours, holiday, sick pay, pension, notice period, job title and place of work) to be provided to an employee in writing.

Given these requirements, most employees are employed under a written contract of employment that is signed by both the employer and employee.

The starting point for amending a contract of employment will be through the explicit consent of the parties to that contract, albeit that this does not need to be by way of a formal amendment to a written contract of employment. In some circumstances consent can be implied by conduct.

ii Probationary periods

Probationary periods are lawful and there are no express provisions limiting the length of a probationary period or extending a probationary period or providing for shorter notice periods during a probationary period (which commonly occurs where there is a contractual notice period). However, employers must provide employees with the statutory minimum period of notice at all times (which is one week up to the first year of service and thereafter increasing by one week per completed year of service up to a maximum of 12 weeks). In addition, in most cases, employees only have rights not to be 'unfairly dismissed' if they have at least two years' continuous service, which will often mean that those on probation do not generally enjoy this right.

iii Establishing a presence

Absent industry-specific regulation to the contrary, an overseas company can hire employees or engage an independent contractor in the UK without being officially registered to carry on business, whether through an agency or another third party. Nonetheless, such hiring triggers certain obligations including in respect of corporate tax if the hiring of an individual creates a permanent establishment (PE) and payroll obligations (regardless of whether a PE is created), such as a requirement to make withholdings for income tax and social security which must be deducted at source.

The mere hiring of an individual (whether as an employee or a contractor) will not of itself create a PE. Rather, the key issue will be whether such an individual has, and habitually exercises in the UK, authority to do business on the company's behalf and that individual is not of independent status acting in the ordinary course of its business. So for example, where an independent contractor genuinely does not have power to bind a company, this will be one factor (albeit not determinative) that militates against there being a PE. If there is a PE, then the relevant entity must file a corporate tax return annually and, will (broadly) be subject to corporation tax on its profits, to the extent that those profits are attributable to the company's UK PE.

v RESTRICTIVE COVENANTS

During employment, an employer has broad powers to prevent an employee from working for anyone else, whether or not that other person is a competitor.

After the termination of employment, contractual provisions restraining the ability of employees to compete are enforceable provided that: they protect the legitimate interests of the business seeking protection (and in this context, 'legitimate interests' has been interpreted to mean customer connections, confidential information and the stability of the workforce); and they are no wider than reasonably necessary to protect those interests, particularly having regard to the scope of the restraint, the sufficiency of lesser restraints and the duration of the restraint.

When determining whether a restraint is enforceable, it will be judged at the time it was entered into (and not the time at which it is being enforced). Moreover, even if a restraint is enforceable in principle, the decision as to whether to grant injunctive relief to enforce it is a matter for the discretion of the court.

Significantly, there is no requirement for an employer to pay an employee in respect of a restrictive covenant. Indeed, even if an employer chooses to pay an employer in return for a period of restraint, this is not a factor that has an impact on the enforceability of the restraint.

In addition, where an employer has dismissed an employee in repudiatory breach of their contract of employment (such as a dismissal without giving notice in breach of contract or a constructive dismissal), any restrictive covenants will fall away.

It is common for contracts of employment, especially for more senior employees, to contain restrictive covenants ranging from provisions preventing the solicitation of employees and customers through to provisions preventing an employee competing.

It is also common for contracts to contain gardening leave provisions, which give employers a right to require that an employee does not carry out any work or have any contact with employees or clients for the duration of their notice period. Gardening leave provisions are generally enforceable, albeit that because the employment relationship continues during any period of gardening leave, in most cases, an employer is required to continue to pay an employee during that period, save where an employee refuses a reasonable request to come to work (see Sunrise Brokers LLP v. Rodgers5).

vi WAGES

i Working time

The Working Time Regulations 1998 contain provisions limiting working hours and providing entitlements to rest breaks and holidays.

In broad terms, the legislation provides as follows:

  1. individuals should not work more than 48 hours per week unless an individual has opted out of this limit or is an autonomous decision maker (such as a senior executive);
  2. the normal working hours of a night worker should not exceed eight hours a day on average;
  3. no night worker doing work involving special hazards or heavy physical or mental strain should work more than eight hours in any day;
  4. workers should be given 'adequate' rest breaks where the pattern of work puts health and safety at risk, especially where work is monotonous;
  5. workers are entitled to the following rest periods:
    • 11 hours' uninterrupted rest a day;
    • 24 hours' uninterrupted rest a week (or 48 hours' uninterrupted rest a fortnight); and
    • a rest break of 20 minutes when working more than six hours a day; and
  6. workers are entitled to 5.6 weeks' paid holiday per year inclusive of public holidays (which equates to 28 day per year for a full-time worker).

ii Overtime

There are no specific requirements pertaining to overtime. As such, subject to an employer complying with minimum wage legislation (which requires employers to pay employees the national living wage of £7.83 an hour for those aged 25 and over, and the following minimum wage rates: £7.38 an hour for those aged over 21, £5.90 an hour for those between 18 and 20, and £4.20 an hour for those under 18), an employee's entitlement to overtime and the rate of overtime pay is a matter that is solely determined by their contract of employment. In addition, as noted above, the issue of whether overtime worked and commission paid should be included in holiday pay calculations is an area that has become increasingly complex following recent decisions.

vii FOREIGN WORKERS

It is a criminal offence to employ an individual who is subject to immigration control and who has not been granted leave to enter or remain in the UK, or does not have permission to work in the UK. Employers should (before allowing a job applicant to start work) require the person to produce documentary evidence indicating that he or she has the right to work in the UK, and keep copies of the documents. If an employer knowingly employs someone who does not have permission to work in the UK, it could be prosecuted. The offences, sanctions and penalties have been widened and increased under the Immigration Act 2016.

Employers have a duty to conduct follow-up checks on employees whose employment began on or after 29 February 2008 where, at the time of recruitment, the employees in question have been granted only limited leave to remain and work in the UK. A follow-up check will normally be required when an employee's permission to live and work in the UK expires.

Citizens of any country in the European Economic Area (EEA) and of Switzerland are currently entitled to work in the UK without special permission.

Non-EEA nationals generally require a licence before they are legally allowed to work in the UK. Since 2011, the UK Border Agency has imposed limits on the number of individuals who may enter the UK under the most common tier used by employers, based on a points system.

There are various changes to the immigration rules being put into force in light of Brexit.

viii GLOBAL POLICIES

There is no requirement for employers to have particular policies in place, nor any prescribed form that such policies should take, with the exception that all employers with five or more employees are required to have a written health and safety policy. However, it is both normal and best practice for employers to have employee handbooks, which contain rules and policies on a broad range of issues, ranging from disciplinary and grievance procedures to equal opportunities.

The failure of an employer to have a policy on certain topics, such as outlawing discrimination and harassment or outlawing bribery and corruption, can create significant problems because it would be viewed as failure to have complied with duties that an employer owes to prevent such unlawful conduct.

In general, most provisions contained in handbooks are expressed to be non-contractual unless explicitly stated otherwise, even though they govern how issues are dealt with in the workplace. It is best practice for employers to make handbooks readily available (whether through the intranet or in hard-copy form) and to require employees to read handbooks and to provide evidence that they have done so and agreed to them (e.g., by sending an email confirming they have done so).

There is no requirement to file handbooks with any government authorities or to agree with any employee representative bodies.

ix TRANSLATION

There is no specific requirement for documents to be in any particular language under the laws of the United Kingdom.

x EMPLOYEE REPRESENTATION

There are no mandatory requirements for employers to have employee representative bodies in place. However, there are relatively complex procedures in places that require employers to recognise trade unions or to establish works councils (the latter has practically never been relied upon) if there is sufficient employee support for such representation.

Where employee representatives are in place, they have rights to be informed and consulted, including in relation to TUPE, where 20 or more employees are being made redundant and certain changes to pension arrangements.

Employee representatives also enjoy protection against being treated less favourably by reason of their status.

xi DATA PROTECTION

As set out in Section II, one of the biggest changes in 2018 was the implementation of the GDPR and DPA 2018.

Data protection law applies whenever a data controller processes personal data. A data controller is the person who determines the purposes for which, and the manner in which, any personal data is, or is likely to be, processed. The term 'processing' has a very broad meaning under the GDPR. It is intended to cover any conceivable operation of data, ranging from collecting, recording and holding of data, and the carrying out of any operation on that data through the data's subsequent disclosure and eventual destruction.

i Personal data

Personal data is that which relates to a living individual who can be identified from the data; or from the data and other information that is in the possession of, or is likely to come into the possession of, the data controller.

ii Restrictions on processing and use

The processing of personal data must comply with seven key data protection principles as contained in the GDPR. These can be summarised as follows:

  1. personal data must be processed fairly and lawfully, and transparently;
  2. personal data must be collected only for specific, explicit and legitimate purposes;
  3. personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which it is processed;
  4. personal data must be accurate, and where necessary, kept up to date;
  5. personal data shall not be kept for longer than is necessary for those purposes;
  6. appropriate technical and organisational measures must be in place to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data; and
  7. organisations must take responsibility for complying with the data protection principles, and must have appropriate processes and records in place to demonstrate compliance.

The GDPR and DPA 2018 contain a number of exemptions from some or all of the data protection principles and other provisions, such as for processing concerning the detection of a crime or the assessment of taxation, or where information must be made public by law.

iii Registration

Data controllers must generally notify the UK Information Commissioner's Office (ICO) by registering with it. The ICO then publishes its details in the register of data controllers, which is available online for inspection by the public. There are limited exceptions to the need to register including when the personal data is held for payroll purposes, for tax collection or for salary surveys. There is a fee involved with this registration of between £40 and £2,900, depending on the size of the business in terms of employee numbers and turnover.

iv Cross-border data transfers

If personal data is transferred outside the UK, there are restrictions. Transfers may be made to any country or territory:

  1. in respect of which the EU Commission has made a positive finding of adequacy;
  2. if adequate safeguards are put in place in the form of model contractual clauses as approved by the EU Commission, binding corporate rules or other contractual arrangements; or
  3. if the transfer is covered by the EU–US Privacy Shield.

Until October 2015, another option was for the US recipient of the data to sign up to the US Department of Commerce Safe Harbour scheme. However, in the decision of the European Court of Justice (ECJ) in Maximillian Schrems v. Data Protection Commissioner,6 the EU–US Safe Harbour framework was found to be invalid. The replacement for Safe Harbour, the EU–US Privacy Shield, came into force on 1 August 2016. The EU Commission has stated that the 'new arrangement lives up to the requirements of [the ECJ in Schrems]'. It includes obligations on companies handling data, safeguards and transparency obligations on US government access, and protection of individual rights. However, it does not address all of the concerns raised by other notable interested parties, including the Article 29 Working Party (a group that contains representatives from each of the EU Member States' data protection authorities). Nevertheless, an Irish privacy advocacy group, Digital Rights Ireland, has already filed a legal challenge against the Privacy Shield, asserting that it provides inadequate protections.

In addition, in relation to the standard contractual clauses and binding corporate rules, there are pending ECJ decisions that may impact the validity of these methods of transfer. With regard to the standard contractual clauses, Max Schrems, who brought the case that ultimately brought down Safe Harbour, is now challenging the standard contractual clauses on a similar basis. There has been a reference made on this from the Irish Data Protection Commissioner to the ECJ.

While this uncertainty remains, there is still no risk-free method for data transfers to the United States. In addition, depending on the type of Brexit deal, there may be additional steps required to transfer data to EU countries from the UK, and from the UK to other third countries.

v Special category personal data

Special category personal data (referred to under the prior legislation as sensitive personal data) is defined in the DPA 2018 as personal data consisting of information as to:

  1. racial or ethnic origin;
  2. political opinions;
  3. religious beliefs or beliefs of a similar nature;
  4. membership of a trade union;
  5. physical or mental health or condition;
  6. sexual life;
  7. the commission or alleged commission of any offence; or
  8. genetic and biometric data.

There are also additional protections for criminal offence data.

Special category personal data can only be processed (fairly and lawfully) if at least one of a number of additional conditions is satisfied, which include the following:

  1. the individual has given his or her explicit consent to the processing;
  2. the processing is necessary for the performance of the data controller's obligations under employment or social security law;
  3. the processing is necessary to protect the vital interests of the data subject (where consent cannot be given by the data subject or cannot reasonably be obtained by the data controller) or of another person (where consent by the data subject has been unreasonably withheld). This is interpreted as a life-or-death circumstance;
  4. the processing is necessary for the purpose of legal proceedings, obtaining legal advice, establishing or defending legal rights, or for the administration of justice or the exercise of functions of a public nature; and
  5. the processing is carried out by a health professional and is necessary for medical purposes.

vi Background checks

Background checks and credit checks are permitted in the UK provided that the employer complies with the DPA 2018. An employer may ask a successful candidate for details of their criminal record but the candidate will only be required to provide the information in two scenarios, namely, if the conviction is unspent (i.e., if the statutory time since the conviction has occurred has not yet expired) or if the job falls within the Disclosure Barring Service's list of regulated professions. This list includes: medics, lawyers, accountants, vets, chemists and opticians; those employed to uphold the law (such as judges and officers of the court, the police, prison officers and traffic wardens); certain regulated occupations (in particular, financial services); those who work with children, provide care services to vulnerable adults or who provide health services; and those whose work means they could pose a risk to national security.

xii DISCONTINUING EMPLOYMENT

i Dismissal

A termination will be lawful if it is in accordance with both an employee's contract of employment and statutory provisions protecting employees against dismissal.

As to contractual provisions, most contracts provide that an employer is entitled to dismiss an employee for any reason provided that an employer provides an employee with the notice of termination stipulated by the contract, or, where expressly permitted by the contract, the employer makes a payment in lieu of that period of notice.

As to statute, employees have a statutory right not to be 'unfairly' dismissed. The essence of the right is: (1) a dismissal has to be reasonable (the test being it cannot be something that a reasonable employer would not do); (2) it has to be for one of five potentially fair reasons (which are conduct, capability, redundancy, breach of a statutory restriction and the catch-all 'some other substantial reason'); and (3) it must be carried out using fair procedures.

Where a dismissal is unfair, an employee is entitled to compensation based on: (1) a compensatory award (essentially damages for loss of earnings flowing from the unfair dismissal) that is capped at the greater of £83,682 or one year's salary; (2) plus a basic award based on years of service, which is capped at £15,240. The cap on compensatory awards does not apply in certain circumstances, including where a dismissal is because of whistle-blowing, discrimination, raising health and safety issues or trade union membership or activities. Employees have no rights to be rehired (save in the case of redundancy – see subsection ii, below), and although reinstatement or re-engagement is a theoretical alternative remedy to damages, in reality, employees never seek this, nor is such remedy ordered by employment tribunals.

There are no obligations to notify any governmental or employee representative bodies about dismissals, except in the case of collective redundancies (see subsection ii, below).

It is common for employees and employers to enter into settlement agreements in connection with a dismissal under which an employer agrees to make a payment to an employee in return for an employee waiving their rights against the employer. Such agreements must meet certain conditions in order for an employee's claim to be waived, including a requirement for an employee to have obtained independent legal advice as to the effect of the settlement agreement on their statutory employment rights.

ii Redundancies

Redundancy is a potentially fair reason for a termination. There is a redundancy situation where an employer has ceased (or intends to cease) to carry on the business for which the employee was employed, or if the requirements of the business for the employee to do work of a particular kind or in a particular place have ceased or diminished (or will cease or diminish).

For a redundancy to be fair an employer must identify an appropriate pool for selection, consult with the individuals in that pool, apply objective selection criteria to those in the pool and consider suitable alternative employment where appropriate.

When 20 or more redundancies are proposed within the same establishment within a period of 90 days, additional obligations exist.

An employer is required to consult with employee representatives 'in good time' before the first dismissal takes place (which must be a minimum of 30 days where there are fewer than 100 redundancies and 45 days where there are 100 or more redundancies). The obligation requires employers to provide specific information to employee representatives and consult with them in good faith with a view to reaching agreement.

In addition, employers must notify the Secretary of State about the redundancies. Notification must be received by the Secretary of State at least 45 days before the first dismissal, where the employer proposes to dismiss 100 or more employees within a 90-day period. Where fewer than 100 redundancies are proposed, the notification period is 30 days.

Xiii TRANSFER OF BUSINESS

TUPE implements an EU directive that is designed to protect the employment rights of employees working in a business whose assets are transferred (rather than one that is sold by way of share sale).

The main impact of the legislation is that the contracts of employees working in the transferred business automatically transfer from the transferor (usually the seller of a business) to the transferee (usually the acquirer of the business). It is intended to protect conduct such as the transferee offering new terms and conditions of employment to the transferring employees that are less favourable than those they enjoyed while working for the transferor.

TUPE applies where there is either:

  1. a business transfer, which is the transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity; or
  2. a change in service provider, for example a client engaging a contractor to do work on its behalf, reassigning such a contract or bringing the work in-house.

If TUPE applies, there are a number of key consequences:

  1. Anyone employed by the transferor in the 'organised grouping of resources or employees' immediately before the transfer automatically becomes the transferee's employee on their existing terms of employment (including pay) and without a break in their period of employment. This includes employees who are dismissed before the transfer, but for a reason connected with it which is not an 'economic, technical or organisational reason entailing changes in the workforce' (often called an ETO reason).
  2. All rights, powers, duties and liabilities under the employment contracts pass to the transferee.
  3. Any changes to the employees' terms will be void if the sole or principal reason for the change is either the transfer itself or a reason connected with a transfer, which is not an ETO reason.
  4. Any dismissal will be automatically unfair where the sole or principal reason for the dismissal is the transfer itself or a reason connected with the transfer that is not an ETO reason.
  5. Employees may refuse to transfer (known as objecting), but the effect is to terminate their employment without any right to compensation.
  6. Both parties must inform and, if they propose any 'measures', consult representatives of their own affected employees in relation to the transfer. If they fail to do so, an employment tribunal can award up to 13 weeks' actual pay for each affected employee.
  7. The transferor must also provide the transferee with certain information about the transferring employees (employee liability information) not less than 28 days before the relevant transfer takes place.

Some of the above provisions are relaxed if the transferor is insolvent.

xiv OUTLOOK

Brexit was a prominent part of our review of 2018, and will continue to dominate the headlines in 2019. In addition, we expect to see the start of enforcement action under the GDPR and DPA 2018, which should provide an indication as to the level of fines that will be imposed. We also expect to see employees in particular make more use of their data subject rights. We could also see increased individual and class actions given the language that permits them under the legislation as noted in Section III.

The government has announced legislation that will give employed parents a statutory right to two weeks' time off in case of the death of a child under the age of 18 (including a stillbirth after 24 weeks). The legislation will come into effect in 2020.

As noted in Section III, the gig economy remains a hot topic in the UK. As part of the consideration of the employment issues surrounding this topic and following 'Good work: the Taylor Review of Modern Working Practices' (the Taylor Review), which was published in July 2017, the government embarked upon four consultations in 2018. In December 2018, the government finally published its proposals on this topic, which focus on the protections for agency workers, zero-hours workers and other workers with atypical working arrangements. The key proposals include the following:

  1. Tax and employment frameworks for determining employment status will be aligned, in particular to provide further clarity on the employment status tests to reflect modern working relationships.
  2. Workers will have the right to request a more stable contract.
  3. The government will put in place measures to track both the quantity and quality of work.
  4. Employers will not be permitted to make deductions from staff tips.
  5. Workers will be entitled to receive a written statement of rights at the start of their engagement. This would cover sick leave eligibility, pay and details as to paid leave entitlements.
  6. Enforcement protections and penalties will increase, including a new single labour market enforcement agency.

There is no timetable for these reforms, but we would expect some movement on draft legislation during the course of 2019 given this announcement.


Footnotes

1 Daniel Ornstein is a partner, Peta-Anne Barrow is a special international labour and employment counsel, and Kelly McMullon is an associate at Proskauer Rose LLP.

2 [2018] EWCA Civ 2339.

3 [2018] UKSC 29.

4 [2018] UKEAT/0289/17.

5 [2014] EWCA Civ 1373.

6 Case C-362/14, 6 October 2015.