UK Employment Update – January 2020

In this alert, we look back at the key developments in UK employment law over the final six months of 2019 and look forward to anticipated developments in the six months to come.

A brief overview of developments and key cases which we believe will be of interest to our clients is provided below, with more detailed information on each topic available by clicking on the links.

1. Political Developments in the UK and the Impact of Brexit (click on link)

   It continues to be a turbulent time in British politics. The 12 December 2019 general election resulted in the return of Boris Johnson as Prime Minister, with a significant majority Government. In this alert, we consider the potential impact of Brexit on international data transfers to and from the EU to the UK.

2. Whistleblowing (click on link)

   We consider two recent decisions of the UK Supreme Court in respect of (1) whistleblowing claims concerning the right of judges as office-holders, to bring detriment claims as whistleblowers, and (2) the circumstances in which an employee may enjoy whistleblower protection on dismissal even though the person who made the decision to dismiss him was unaware that he was a whistleblower.

3. Patent for Employee Invention (click on link)

   We report on a UK Supreme Court case which found that an employee of a Unilever subsidiary was entitled to compensation because the patents for his invention were of outstanding benefit to his employer.

4. Updated Guidance for Holiday Entitlement for Part-Year Workers (click on link)

   There has been no shortage of holiday pay cases over recent years, and we report on revised government guidance published at the end of the Summer concerning the calculation of holiday pay for those who only work for part of each holiday year.

5. Forthcoming Changes (click on link)

   We summarise a number of changes coming into force on 6 April 2020 that will affect employment law including those relating to taxation, such as new rules for off-payroll working in the private sector and a new NIC charge on termination payments. We also consider forthcoming changes proposed in the Employment Bill.

   APPENDIX

1. Current Political Environment and Impact of Brexit

   After winning the December 12 general election with a strong majority, Boris Johnson returned as Prime Minister, with the political capital to extract the UK from the European Union on 31 January 2020 and move on to negotiations about our future relationship. The precise implications of Brexit on UK law are still largely uncertain given the wider climate of uncertainty around Brexit. The European Union (Withdrawal Agreement) Act 2020 has been enacted. This means that the UK will most likely leave the EU on 31 January 2020, with a transition period until 31 December 2020.

   During the transition period the country will no longer be a member of the EU, but will still have to adhere to EU rules. During this period, the future relationship between the UK and the EU will be negotiated.

   In relation to personal data transfers, during the transition period there will be no change. During this period, it is hoped that the EC would make an "adequacy decision" in favour of the UK which would allow the free flow of personal data from the EU to the UK once the transition period ends, without the EU data exporter having to implement additional safeguards. On a similar note, at the end of the transition period companies relying on Privacy Shield certification (the EU-US privacy shield framework of the US Department of Commerce and the European Commission) to receive personal data from the UK will need to update their public commitment to comply with the Privacy Shield to specifically include the UK.

2. Whistleblowing

   Status challenges

   In the case of Gilham v Ministry of Justice [2019] UKSC 44, the Supreme Court has held that judges are entitled to protection under UK whistleblowing legislation. The Supreme Court agreed that the Employment Rights Act 1996 ("ERA 1996") excludes the judiciary from its protection, but found this to be incompatible with rights under the European Convention on Human Rights ("ECHR"). It found...