REUTERS | Phil Noble

Employment highlights: March 2017

Brexit. On 29 March 2017, the Prime Minister gave the European Council the Article 50 notification of the UK’s intention to leave the EU. In the absence of any agreed extension, the UK will leave the EU at midnight on 29 March 2019. Visit the Practical Law Brexit page and the Thomson Reuters Brexit resources for legal professionals for more information. Plans for the “Great Repeal Bill” are unfolding but the Brexit Secretary, David Davis, has attempted to clarify the proposed status of ECJ judgments and has also stated that there will be no cap on working EU migrants.

Discrimination. This month, the ECJ handed down two judgments concerning bans on the wearing of Islamic headscarves within the workplace. In Achbita, the ECJ held the headscarf ban was not direct discrimination if it was part of a ban on all visible religious symbols. However, it may constitute indirect discrimination. In Bougnaoui, the ECJ held that a customer’s objection to an Islamic headscarf could not be a genuine and determining occupational requirement justifying less favourable treatment. The employee’s dismissal for refusing to remove the headscarf was therefore directly discriminatory.

In two cases concerning retirement, Advocate General Bobek has given an opinion that the age limit of 65 on commercial air transport pilots is not age discriminatory, and the Court of Appeal has held that it was not age discriminatory for police forces across England to effect a mass compulsory retirement of a whole class of serving officers in order to meet government-imposed budget cuts.

The EAT has largely upheld an employment tribunal’s decision that an employee who returned part-time from maternity leave only to be made redundant had been unfairly dismissed and subjected to indirect sex discrimination and part-time worker detriment. The EAT also held that an employee could not claim disability harassment based only on an assertion that he was disabled, where his condition did not in fact satisfy the definition of disability in section 6 of the Equality Act 2010.

An employment tribunal has held that the transitional provisions in the Firefighters’ Pension Scheme were objectively justified and therefore not discriminatory on the basis of age, despite a ruling on similar provisions in the judges’ pension scheme going the opposite way in January. The Fire Brigades Union has launched an appeal.

The independent McGregor-Smith review into race in the workplace, which looked at the issues and obstacles faced by businesses and individuals in developing BME talent, recommended that employers should be required by law to publish a breakdown of their workforce by race and pay band. In its response, the government stated that it believes that a non-legislative solution is the right approach for now, but that it will monitor progress. The Business minister has written to FTSE 350 chief executives to ask them to implement the recommendations.

The House of Commons debated the e-petition calling employers to be banned from forcing female employees to wear high heels at work, which was signed by over 150,000 people. The government responded that it intends to take strong action to tackle sex discrimination at work. Although it believes the law in this area is already adequate, it will respond more fully to the recent joint committee report, High heels and workplace dress codes, in the coming month.

Finally, the government has published a consultation paper on caste discrimination asking whether it should legislate on caste discrimination (in order to comply with its duty under section 9(5) of the Equality Act 2010) or repeal the section 9(5) duty altogether.

Employment status. An employment tribunal held that an Excel cycle courier was a worker, not a self-employed contractor. A flurry of other “gig economy” challenges are now underway, including a case lodged against Deliveroo.

Employment tribunals. The EAT has confirmed that tribunals must consider time limits when determining an application to amend a claim. While the decision whether to allow new matters to be added to a claim is a matter of judicial discretion, it is a “single-stage” exercise. The employment judge should not have granted an application to amend, subject to consideration of time bar issues at a later date.

A Scottish employment tribunal, disagreeing with two previous English decisions, has held that Acas early conciliation that takes place before the limitation period has started running cannot count towards an extension of time. A further English decision (available on Westlaw) has also been published this week adopting the same position. In other words, where EC is started during the employee’s notice period, the time limit for an unfair dismissal claim starts running on the day of dismissal, or the day the EC certificate is given, whichever is later. This must be right; a clock that has not yet started cannot be stopped.

Unions. Sir Ken Knight has commenced his independent review of the use of e-balloting in industrial action ballots. A call for evidence has been launched and will close on 10 May 2017.

Criminal records. The Court of Session (Outer House) held that the criminal record disclosure scheme in Scotland unlawfully interfered with the right to privacy under Article 8 of the ECHR, because it required the automatic disclosure of the claimant’s conviction for “lewd and libidinous practices” 27 years previously, at the age of 14, which had no bearing on the job for which he had applied.

Whistleblowers.  The European Commission launched a public consultation on the benefits and drawbacks of whistleblower protection. The consultation closes on 29 May 2017. The Department of Health has also published a consultation on draft regulations which would prohibit NHS employers from discriminating against whistleblowers during recruitment. Current rules only cover existing workers.

Tax. HMRC has updated its guidance on off-payroll working in the public sector to prepare for the introduction of new rules on 6 April 2017. HMRC also published a new employment status checker for the purposes of determining whether the IR35 (intermediaries) legislation will apply.

Termination of employment. The Court of Appeal has held by a majority that, where there is no contractual provision governing when a notice of termination served by an employer takes effect, the notice takes effect when the employee personally takes delivery.

Immigration. The Immigration (Health Charge) (Amendment) Order 2017 was published introducing an annual immigration health charge for Tier 2 intra-company transferees and their dependants. It is expected that this will come into effect in April 2017. The Immigration Skills Charge will also come into effect on 6 April 2017, imposing an annual charge of £1,000 on sponsors of certain Tier 2 immigrants. Other changes to the Immigration Rules also come into effect.

In other news, a campaign to increase low paid workers’ knowledge of minimum wage rights  was launched, Mitie is planning to appoint a worker representative to the board, there are now 910,000 workers on zero hours contracts, two private members’ bills have been presented calling for greater protection for transgender persons, the High Court has agreed with Transport for London that English language tests for Uber drivers are not discriminatory, fathers are not taking up flexible working opportunities, the Supreme Court has refused permission to appeal in Lock v British Gas, and female FTSE 100 Chief Executives only earn half the pay of their male counterparts.

On our blog, Sophie McGuiness examined how the online publication of employment tribunal decisions may have unwanted consequences for claimants, Sara Meyer and Beth Unwin analysed some practical difficulties in gender pay gap reporting and Carolyn Soakell looked at the problems that may arise from the treatment of incentive schemes in gender pay gap reporting. Finally, Grahame Anderson analysed the interface between perceived and alleged disability under the Equality Act 2010.

Next month

Key developments to look out for in April 2017.

For further details on the key changes to employment law coming into force in April 2017, see  April 2017: Key employment law changes.

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

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

Leave a Reply

Your email address will not be published. Required fields are marked *