Scottish Legal Review: Adjustments just the job

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Some of the biggest changes in employment law in the last couple of years have been a response to the shifting nature of the modern workforce, while other high profile areas involve decades-old legislation being applied more frequently.

Tony Hadden, partner at Brodies, reports that last year’s removal of employment tribunal fees, introduced by the Government in 2013, continues to result in a significant number of claims.

He says: “The numbers of cases have increased in the last year by more than 100 per cent. And although that still does not get us back to where we were before fees were introduced, it does mean that there is more risk for organisations not dealing with people properly.”

“It colours everything to do with HR in the UK, and we’ve seen a significant increase in the size of the work.”

James Cran, legal director at Pinsent Masons, believes that these increases will begin to level off however. “Quite a lot of companies have been through restructuring as a result of the financial crisis so it might be that they are now better at going through redundancy processes. There also seems to be the start of less of an appetite amongst former employees to bring standard unfair dismissal claims.”

Cran says that the way companies record and store data was another area which saw significant change after the general data protection
regulation (GDPR) came into force in May.

Cran says: “GDPR caused a huge drive in preparing for it. Big clients who had specialist teams to tackle hard compliance were in a good position but there were dangers for smaller companies who want to do a criminal record check for instance, who might not understand the finer points of the legislation.”

He warns: “One thing to keep an eye on in this area, particularly for large organisations, is no-win, 
no-fee law firms looking to people making mistakes. It is yet another impetus to ensure compliance as the fines can be costly.”

Hadden says: “One of the big changes for employment lawyers is that the way in which employers were previously reporting data was using a concept of consent in the contract.

“You can’t do that anymore and so we spent a lot of time with clients developing privacy notices for employees and others such as contractors, potential applicants for work and people who provide references for instance.”

Gender pay gap reporting, which requires employers with 250 or more employees to publish statutory calculations showing how large the pay gap is between their male and female employees, also came into force last year and Hadden says: “We helped clients with calculations, analysing data and identifying which information should be included.”

Questions of employment status in a gig economy are more recent areas of focus. Cran says: “The government two years ago introduced a change in the taxation of contractors, who work for themselves but provide services into the public sector.

“The question is how you define status between an employee who pays PAYE and has employer national insurance contributions and the fully self employed.

“The Chancellor plans to introduce an obligation on all businesses to consider whether people they are engaging as non-employees should actually be classed as employees, so the recategorising and re-documenting will be a key area of work.”

In relation to Brexit Hadden says: “It is still a case of wait and see as there is a possibility that there may be a dislocated immigration policy because Scotland’s needs are different from those of central London for example.

“I think the solution will be industry specific, such as the seasonal agricultural workers scheme, and we might see similar programmes for Scottish hospitality or food and drink to alleviate the worst pressure points.”

Cran agrees but says: “The government has said explicitly that there is no plan to change employment protection laws but whether that view would survive a hard Brexit is another matter, but it would be part of a long list of very significant issues.”