The best laid plans …. What does Autumn 2020 hold for employment law?

2020 may not have started out with a well-defined employment law agenda but few could have predicted the job retention scheme, a major shift to home working and changes to the SSP regime. As some normality begins to return to workplaces, what employment law developments are we likely to see in the final few months of 2020?

Brexit

One certainty is that, deal or no-deal, Britain will leave the EU at midnight on 31 December 2020. How much of an impact this will have on employment law remains unclear. Minimal changes have been written into legislation (such as the impact on European Works Councils) but more far-reaching developments are possible. The recently closed Ministry of Justice consultation on granting lower courts the power to overturn ECJ decisions could give the EAT the right to depart from established principles of employment law. This could see the courts revisiting and potentially reforming issues, such as the rules on carry over of annual leave or the calculation of holiday pay.

Tax changes for the self-employed

There was widespread relief when the Chief Secretary to the Treasury announced in March that the reforms to IR35 tax rules would be postponed. Under the new off-payroll working rules, liability for applying the correct tax treatment to the fees of a contractor, operating via a personal services company, is shifted from the contractor's PSC to the end-user. This means that the end-user will bear responsibility for failure to operate PAYE.

If your IR35 implementation plans have been shelved all summer, now is the time to dust them off. The Finance Bill 2020 received Royal Assent in July and the new date for implementation is 6 April 2021.

Board diversity

The final Hampton-Alexander Review was due to be published this year. The Review sets a minimum target for FTSE 350 Boards of 33% women directors, to be achieved by the end of 2020. However, with the disruption to businesses experienced over the last few months, the timetable has been postponed. Data collection will take place in the Autumn and the last Review will be published in February 2021. In its most recent update, Hampton Alexander confirmed that 20 FTSE 100 companies have not yet met the target.

Employment status in the gig economy

In July 2020, the Supreme Court heard Uber’s appeal against the decision that its private hire drivers were workers. The Court of Appeal had looked through the contractual documents to find that, in reality, drivers were not self-employed contractors operating small businesses with Uber acting as an intermediary between the drivers and passengers. Judgment is awaited and the outcome is likely to have far-reaching consequences for employment models within the gig-economy.

Flexible working and the workplace of the future

One of the government’s proposals outlined in the Queen’s Speech was to make flexible working the default, unless employers have a good reason not to. Covid-19 has radically altered the approach of many employers to agile and remote working. However, a fragmented or disparate workforce brings with it a range of new challenges for employers. How do you maintain your corporate culture when a core contingent of employees work remotely; what are the pitfalls of running grievance and disciplinary procedures virtually; and how can policies, such as whistleblowing or anti-harassment, be adapted to a remote working environment.

The Linklaters’ Employment and Incentives team has scheduled a series of podcasts addressing these issues, and other challenges, arising from the post-pandemic workplace. Click here for dates and more information.

Thanks to Kimberley Pardailhe-Galabrun for her input in writing this article.