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Employment Law Update 2016

15 Dec 2015

 Employment Law Update 2016


MBM Commercial

Hannah Roche

Our guest blogger Claire Nisbet is a Senior Solicitor in the Employment and Pensions team at Maclay Murray & Spens LLP. Whilst advising employers and employees on a wide range of employment issues, Claire specialises in advising clients on contentious employment, discrimination and equal pay matters. 
Claire is the Treasurer of the Scottish Discrimination Law Association, a Committee Member of Scottish Women in Business and a Board Member of Graphic Enterprise Scotland, the Trade Association for Print Employers in Scotland. Since April 2015 Claire has acted as Assistant Editor and Research Assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart), the only distinctly Scottish reference work of its kind.


What does 2016 have in store in terms of changes to Employment law?

In 2015 we have seen changes to Zero Hours Contracts, the introduction of Shared Parental Leave and the continuing furore over holiday pay to name a few. 2016 doesn’t look to be any less busy in terms of legislative change and interesting case law.


Consultation on Regulatory Reform in the Recruitment Sector

As readers will know the recruitment sector is regulated by the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the ‘Conduct Regulations’). In 2013, the Coalition Government consulted on proposed reforms to the legislation which would allow the recruitment sector greater freedom to fulfil its role in matching demand for jobs to demand for workers. At the end of 2015, the government published a further consultation on reform of the legislation which regulates employment agencies and employment businesses. The government will publish its response by 15 February 2016.

Following the introduction of a new requirement in January 2015 that prevents recruitment agencies from advertising British vacancies solely in overseas EEA countries, unless certain conditions apply, the government is proposing to ban recruitment agencies from recruiting work-seekers solely from overseas EEA countries without advertising the relevant vacancies to domestic work-seekers. The effect of this change would be to compel recruitment agencies to advertise in Great Britain each time they are engaging in recruitment activity overseas, with a view to filling the vacancy from work-seekers living in Great Britain. They would no longer be permitted to fill such vacancies using work-seekers already on their books.


National Living Wage

The new National Living Wage (NLW) will be introduced at a rate of £7.20, up from the current national minimum wage of £6.70 from April 2016. The NLW will only be paid to those aged 25 and over; younger employees will continue to be paid the National Minimum Wage at the appropriate rate.. The NLW is set to rise incrementally with a target of over £9 by 2020. The Office for Budget Responsibility predicts at least 2.7 million low wage workers will benefit from the NLW but that it will lead to approximately 60,000 job losses by 2020.

If you or any clients haven’t already carried out an audit of how the NLW will affect your organisation and its employees we would advise that you do so as soon as possible. You should particularly take into account the "ripple” effect of an increase to the salaries of workers not only in this category, but those graded (and therefore paid) more than them currently.


Trade Union Bill

2016 looks set to see a massive shake up to our already complicated and burdensome Trade Union Law. The amendments will increase ballot thresholds, introduce new information and timing requirements in relation to industrial action and impose legal requirements on unions for the supervision of picketing. Although the bill was met with strong opposition, it will go onto the House of Lords for a second reading in January before receiving Royal Assent at some point next year.

The Scottish Government has asked on 17 October to be excluded from the entire bill. Roseanna Cunningham, the Cabinet Secretary for Fair Work Skills & Training, believes that the Bill proposals could, “undermine the effective engagement of trade unions across Scottish workplaces and across the Scottish public sector in particular”.


Employment Tribunal Fees

UNISON has applied for permission to appeal to the Supreme Court directly, having been refused permission by the Court of Appeal in relation to their Judicial Review Application concerning the introduction of Employment Tribunal (ET) fees in July 2013. So far the union have been unsuccessful in arguing that fees prevent claimants from having access to justice, that the regime is indirectly discriminatory and that the Lord Chancellor has failed to satisfy the public sector equality duty. The application may become academic in Scotland following the announcement by the Scottish Government that it intends to abolish ET fees in Scotland as part of the transfer of jurisdiction over Employment Tribunals to Scotland as a means of “ensuring that employees have a fair opportunity to have their case heard". A timescale for abolition has not been announced.


Auto enrolment continues for medium and smaller sized employers

Organisations with less than 50 employees should by now at least know their staging date for auto - enrolment (which will be before 1 April 2017). Once again if you or any clients you advise do not yet know the impact of increased pension costs on your business you should take steps to consider this as soon as possible. 


For advice or more information around any of the issues discussed please email


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