REUTERS | Jim Young

Employment highlights: July 2017

Employment tribunals. In a momentous decision, the Supreme Court declared that employment tribunal and EAT fees are unlawful under domestic and EU Law. The Court quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) on the basis that it prevents access to justice. The effect is that all fees paid since 29 July 2013 will be reimbursed by the government and fees are no longer payable for future claims. The government has accepted the ruling and is putting in place systems for reimbursing all fees paid to date.

In two contrasting decisions, the EAT considered whether a difference in the respondent’s name on the EC certificate and the claim form was a “minor error” with the result that the claim could proceed. The EAT upheld an employment tribunal’s decision to reject an ET1 where the respondent’s name substantially differed to that on the EC certificate.  However, in a case with essentially the same facts, a differently constituted EAT held that incorrectly naming the respondent on the EC certificate was a “minor error” which should have been overlooked.

Gig economy. The long-awaited Taylor Report was published. It makes recommendations designed to improve the working conditions of atypical workers and individuals working in the gig economy, including to rename “workers” who are not “employees” as “dependent contractors” and to give dependent contractors additional rights. At this stage, there is no immediate practical impact of the report on employers and we will report on consultations to change the law as they are published, which could be as early as Autumn 2017.

Discrimination. The ECJ found that Italian law permitting the use of zero hours contracts for young workers with automatic dismissal at age 25 was not unlawful age discrimination. The court concluded that in the context of a difficult economic climate the Italian government had a legitimate aim of facilitating the entry of young people to the labour market and its means of doing so were appropriate and necessary.

The Court of Appeal held that the 10% Simmons v Castle uplift applies to employment tribunal discrimination awards for injury to feelings and psychiatric injury. The court recommended that Presidential guidance be issued for tribunals in England and Wales to assist in calculating injury to feelings and personal injury compensation.

In light of the judgment, the Presidents of the Employment Tribunals have launched a consultation on upgraded Vento bands. The consultation seeks views on new increased bands for compensation for injury to feelings in discrimination claims.

The Court of Appeal held that advantageous treatment was not unfavourable within the meaning of section 15 of the Equality Act 2010  (discrimination arising from disability). The court implicitly approved the EAT decision that “unfavourable treatment” under section 15 does not equate to either the concept of “detriment” or that of “less favourable treatment” and decided that treatment which confers advantages on a disabled person, will not amount to unfavourable treatment merely because it could have been even more advantageous. We understand that the employee is seeking permission to appeal to the Supreme Court.

The closing date for responses to the consultation on caste discrimination in the UK has been extended to 18 September 2017.

Pay and benefits.  Departing from long-standing practice, the EAT held that employer pension contributions count towards a week’s pay under the ERA 1996. The decision increases the value of a week’s pay, subject to the overall statutory cap.

Pensions. The Supreme Court confirmed that same-sex partners are entitled to equal survivors’ pension benefits. The court also held that benefits should be calculated on the basis of full pensionable service, including service prior to the implementation date of the Equal Treatment Framework Directive . The decision finally clarifies the position for same-sex survivors’ pensions, an issue which has been outstanding since this claim was first decided by an employment tribunal in 2012.

The Supreme Court referred O’Brien to the ECJ. The case involves the question of whether the Part-Time Workers Directive (97/81/EC) requires periods of service accrued before the deadline for transposing that Directive to be considered when calculating the pension of a part-time judge.

Whistleblowing. In the first case of its kind to reach the Court of Appeal, the public interest test was given a wide interpretation by the Court of Appeal. The court upheld the tribunal’s decision that the worker’s allegations of financial misreporting, that had adversely affected the levels of commission received by about 100 employees (including the worker himself), was a qualifying disclosure. The court noted that the issue is not whether the tribunal thinks that the disclosure was in the public interest, but whether the whistleblower thought so, and whether that belief was objectively reasonable at the time.

The EAT held that non-executive directors were jointly and severally liable with the employer for a whistleblower’s post-dismissal losses. The EAT distinguished between dismissal within the meaning of the unfair dismissal provisions of the ERA 1996 (which is excluded from the ambit of detriment claims, pursuant to section 47B(2) of the ERA 1996) and dismissal which is not within the meaning of those provisions (and so which could form the basis of a detriment claim).

In other news, the Government Equalities office announced plans to consult on gender recognition certificates,  the Resolution Foundation proposed that self-employed workers should receive the minimum wage, the government pledged to investigate private hire industry working practices, HMRC announced a waiver of financial penalties and temporary suspension of HMRC investigations in relation to the underpayment of the NMW for “sleep-in” shifts in the social care sector,  Mercer reported that less than half of UK companies believe that mandatory pay gap reporting will have a substantial impact, BEIS published two reports on compliance and enforcement of minimum wage,the Department of Health suggested vaping at work may be permissible, Brenda Hale will become the first female president of the Supreme Court, Damian Hinds MP urged recruitment agencies to crack down on “unacceptable” job scams and the BBC Director General announced hope to end the BBC gender pay gap by 2020.

In our blog, Guy Bredenkamp explains litigating multiple equal pay claims and how tribunal fees have changed the game for equal value claims with multiple claimants , Dominic Holmes analyses the Taylor Review and considers the opportunities that it missed and Nicholas Siddall discusses the shift in approach of Employment tribunals to issue costs to mirror the position under the CPR in the increased relevance of the CPR and when should the merits of a case be assessed for costs purposes?

Next month

August 2017 is traditionally the quietest month for employment developments. Last August, the Prime Minister launched an audit of racial disparities in public services. The first data was expected to be published before summer 2017, and is still awaited. We expect significant developments in the second half of 2017 in relation to Brexit, tribunal practice and procedure (in light of the Supreme Court’s decision) and the gig economy.

For recent and forthcoming developments, don’t forget What to expect in employment lawCase tracker and Legislation tracker.

New: Key dates calendar. Our new Key Dates Calendar is also available to help employment practitioners identify forthcoming developments. If there is a development you would like us to add to our monitoring list, please use the Ask service.

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