In February we wrote about six cases due to be heard in the higher courts which significantly impact on the development of employment law. Five have now come to light with mixed news for employers. The rulings are in italics.
1. Employment Status
Last autumn, a London Employment Tribunal held that Uber was a taxi company, not a technology platform as it claimed, and found that its drivers had legal rights including the right to paid holiday and the minimum wage. Uber announced that they were to appeal to the Employment Appeal Tribunal and that appeal is expected this year. This was the tribunal case that everyone talked about in 2016.
In January, a different employment judge at the same employment tribunal found that a cycle courier was a worker for CitySprint, and three more cases being brought by couriers (against Excel, Addison Lee and eCourier) will be heard by the same employment judge this year.
While employment tribunals’ decisions do not bind other tribunals, those of higher courts do. The Court of Appeal recently heard another case (involving nominally self-employed individuals who work for Pimlico Plumbers) and the result of that case is likely to affect the outcome of other claims.
Ruling
The Court of Appeal in the Pimlico Plumbers case have maintained that employment or worker status is a matter for a Tribunal to determine on its facts and therefore so-called self employed people may have a different status and accrue more rights such as holiday pay. Trying to maintain that ‘dependent contractors’ are genuinely self employed is increasingly difficult so be prepared to review the business model for such people. Often the main issue is holiday pay so it would be wise to take a proactive stance on such workers.
2. Equal Pay
In what has been described as the largest ever equal pay claim against a private-sector employer, more than 9,500 Asda shop floor workers – who are predominantly female – are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres, which are traditionally male dominated. In October 2016, the Manchester tribunal agreed that the shop floor staff could compare themselves to distribution workers, and now the tribunal must determine whether there is a pay difference and, if so, whether the difference is due to genuine material factors or not. Other large supermarkets are also facing claims and more retailers could be at risk.
There has been no reported progress in the supermarket equal pay cases yet, It is worth conducting a gender pay gap review discreetly to assess your liability and take corrective action or at least start to budget for change. The recent BBC star pay furore will further add to the possibility of challenge.
3. Whistleblowing
Perhaps the liveliest area for case law in the last few years relates to the scope of the term “in the public interest” in whistleblowing legislation. Since June 2013, whistleblowing laws have provided that a disclosure is not protected, unless the employee reasonably believes that the disclosure is being made “in the public interest”.
The EAT in Chesterton v Nurmohamed held that matters potentially affecting the operation of the commission scheme of more than 100 managers at a large firm of estate agents could be “in the public interest”. The Court of Appeal was expected to decide whether or not, the EAT’s interpretation of what that phrase means is correct.
Ruling
The Court of Appeal decided in the Chesterton whistleblowing case that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistle-blower thought so, and whether that belief was objectively reasonable at the time. There are no “absolute rules” about what it is reasonable to view as being in the public interest. Be very careful when anyone complains about anything that might just possibly be termed whistleblowing. In the first instance you should try to steer them in the direction of your Grievance procedure. Employees with less than 2 years service who cannot claim unfair dismissal have been known to try to sneak in through the door marked ‘whistleblowing’!
4. Employment Tribunal Fees
The Supreme Court heard Unison’s appeal against the Court of Appeal decision in March 2017 in respect of Tribunal fees. The Court had previously rejected it on the basis that there was insufficient evidence of claimants’ inability to afford the fees.
Ruling
Probably the biggest case of many years was the Supreme Court judgment that the regime of Tribunal fees was unlawful and that fees will therefore need to be abolished, and the fees paid must be refunded to claimants. The law already requires employers to act properly i.e. reasonably and correctly. There are now teeth to the real ability of employees or ex-employees to make a claim without being deterred by lack of immediate finance.
5. Holiday Pay
British Gas applied for permission to take the case brought by a Mr Lock to the Supreme Court. If allowed to proceed, the Supreme Court would finally determine whether EU law can be read across into UK domestic law to require employers to take into account commission (and other) payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998.
The Supreme Court hearing was fast-tracked, given the serious financial implications for employers.
Ruling
British Gas were not given permission to appeal to the Supreme Court in the British Gas v Lock case, so the settled legal position is that commission must be a feature of holiday pay. If you pay commission or regular bonuses then you need to seriously review how you are going to calculate holiday pay for such staff.
6. Religious discrimination
Last year, the ECJ heard two religious discrimination cases, both concerning female Muslim employees who had been told not to wear headscarves (hijabs). Before the judges make a decision, it is usual practice in the ECJ that an Advocate General considers the case and writes an Opinion (which may or may not be followed).
Perhaps the biggest employment law surprise of 2016 was the Advocate General’s opinion in Achbita, on when employers can ban religious dress, on the basis of maintaining its religious and political neutrality.
A different Advocate General considered that an employer cannot have a blanket ban on religious dress simply because of a desire for neutrality or because a client or customer objects. The two ECJ judgments, expected to be delivered in 2017, will decide which of the two Advocate General approaches is correct.
Ruling
Finally, the ECJ gave what were arguably conflicting judgments in the two cases they heard about Muslim headscarves and dress codes. It was held that a policy banning headscarves in the workplace was not direct discrimination and that in the other case, the banning of a headscarf was not a genuine occupational requirement and therefore discriminatory. The key lessons are to think very carefully about any dress code and its impact on morale but especially if it might be harder for some groups to comply or appears to be directly discriminatory.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
