REUTERS | Ilya Naymushin

Employment highlights: June 2017

Queen’s speech and Brexit. The Queen’s Speech on 19 June 2017 included the announcement of a new Immigration Bill to deal with the immigration status of EEA Nationals and the forthcoming repeal of EU freedom of movement law. A new Data Protection Bill was also announced to implement the EU General Data Protection Regulation and give individuals greater rights over their data, including the right to be forgotten.

The government has since published its plan for EU citizens residing in the UK after Brexit. However, it has also been reported that a third of migrant workers are considering leaving the UK in the next five years, and that UK farming is already facing a migrant worker shortfall.

Working Time and Time Off. The Advocate General has given an opinion that a worker is entitled to be paid in lieu on termination for any periods of annual leave that have accrued during employment, which the worker has been discouraged from taking because it would have been unpaid. If followed by the ECJ, this could have major implications for misclassified gig economy workers.

In another case, the Advocate General delivered an opinion that a weekly rest period may be given on any day during the seven-day reference period. It does not have to be granted on the seventh day following six consecutive working days, and so it is possible to have a rest day at the beginning of one week and at the end of the following week, with 12 working days in between.

TUPE and pre-packs. The ECJ has followed the Advocate General’s opinion in a case that broadly confirms that UK law is correct to confer TUPE protection on employees in the event of a pre-pack sale.

Discrimination. An employment tribunal upheld a male employee’s claim that his employer’s failure to offer enhanced shared parental pay amounted to direct sex discrimination, in circumstances where the employer offered full pay to mothers on maternity leave. The reasoning is at odds with another employment tribunal decision earlier this year. Both decisions have now been appealed to the EAT.

The EAT upheld a tribunal’s decision that redundancy dismissal following a period of disability-related absence was not discrimination arising from disability. Although the employer had realised during the employee’s absence that his post was no longer needed, this was not sufficient, on the facts, to meet the causative test.

Unfair dismsisal.  The EAT has upheld a finding that a capability dismissal was fair, despite the employer’s failure to provide witness evidence of the disciplinary appeal at the tribunal hearing. The minutes of the appeal hearing had been provided, and the tribunal had been entitled to infer that the appeal panel had upheld the reasoning of the original decision-makers.

Multiple equal pay claims. The EAT in a large equal pay case has also held that claimants doing different jobs cannot be included on the same claim form. The judgment looks set to increase the overall fees payable in such cases. It also increases the risk of such claims being rejected as being improperly presented, where the reason for including the claims on the same form is to save fees.

Employment status. The Law Society published its submission to the Taylor Review, including recommendations for new statutory definitions of “employee”, “worker” and “self-employed”. Matthew Taylor has outlined a six-point plan ahead of the publication of his report, which is expected in July. He has also stressed the importance of maintaining a flexible labour market and said he would not support a zero-hours contract ban.

In other news, two directors faced a backlash after informing staff that jobs were at risk unless they voted Conservative, TUC research shows 25% of fathers fail to qualify for paternity benefits, a GMB survey reveals that nearly 10 million Britons are in insecure work, a construction firm has banned workers from having beards, the Bar Standards Board has proposed a new parental leave initiative for barristers, the ONS has published statistics showing that union membership is at the lowest level since records began, and the first government department has published its gender pay gap figures.

In our blog, Michael Rubenstein questioned the reasoning of Advocate General Bobek in an age discrimination cases, Matthew Sellwood analysed an EAT case on the relevance of lapsed disciplinary warnings, and Jane Moorman discussed how artificial intelligence may not be so bright when used in recruitment.

Finally, we have now run out of our ever-popular mouse mats for 2017, but you can still get all the information electronically on a single page here.

Next month

Key developments to look out for in July 2017.

For recent and forthcoming developments, don’t forget What to expect in employment law, Case 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.

2 Dr Johnson’s Buildings Practical Law Employment Mark Tarran Sophia Stapleton Monthly digest

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