REUTERS | Denis Balibouse

Employment highlights: October 2017

Discrimination. The ECJ has held that an employer’s failure to assess the workplace risks posed to a breastfeeding worker amounted to direct sex discrimination. The decision challenges the position of UK law which prevents a woman from bringing a direct sex discrimination claim if she has suffered a detriment related to breastfeeding. The ECJ has also held that a minimum height requirement for the Greek police was indirect sex discrimination which could not be objectively justified.  Particular physical aptitude was not necessary for all police functions and in any case height was not necessarily connected to physical aptitude.

The Court of Appeal has held that a faith school’s segregation of girls and boys amounts to direct sex discrimination against both sexes. Irrespective of whether boys and girls are equally disadvantaged, direct discrimination should be viewed from an individual perspective as opposed to comparing the treatment of one group to another. While not an employment case, this decision has implications for the definition of direct discrimination in employment cases.

The EAT has clarified the Court of Appeal’s ruling in CLFIS (UK) Ltd v Reynolds, holding that a decision, if made jointly, will give rise to liability under the Equality Act 2010 when there is a discriminatory motivation on the part of any of the decision-makers.

Meanwhile, the government has published the results of its racial audit of public services. Figures suggest that fewer than 1 in 7 teachers are from an ethnic minority, together with 11% of senior NHS officials and 6% of judges. A dedicated ethnicity facts and figures website has been launched following the audit.

The Parker Review Committee has published its final report into the ethnic diversity of UK boards. The recommendations made in the final report remain unchanged from those made in the consultation version of the report.

Cross-border and human rights. The Supreme Court has held that an employment tribunal has jurisdiction to hear claims brought by a domestic worker employed by a Saudi diplomat in London. Although the diplomat was entitled to diplomatic immunity in respect of official functions, this did not extend to the employment of domestic staff, an activity outside of his official capacity.

The Supreme Court has also ruled that the EU Charter of Fundamental Rights requires UK courts and tribunals to disapply provisions of the State Immunity Act 1978 which purportedly prevent foreign domestic workers at UK embassies bringing claims in an employment tribunal. Employment at an embassy was a private law matter, not an exercise of sovereign authority.

The Home Office has published updated guidance on slavery and human trafficking in supply chains, to help employers comply with reporting requirements in the Modern Slavery Act 2015.

Concurrently, research by campaign group Kalayaan has revealed that a substantial number of foreign domestic workers are reporting abuse (physical and psychological) despite new laws allowing them to seek new employment in the first six months of their visa. In response to rising modern slavery concerns, some of the UK’s largest employers have created the first “Business Against Slavery Forum”.

Unfair dismissal.  The Court of Appeal has held that an employee was not automatically unfairly dismissed for making protected disclosures to her line manager because the person who took the decision to dismiss her was unaware of those disclosures, and had been manipulated by the line manager.

The EAT has held that earlier misconduct could be taken into account in disciplinary proceedings even though no disciplinary action had been taken or warnings given at the time. It also held it was unlikely that an investigation could be criticised for being too thorough.

Employee data and monitoring. The Data Protection Bill had its second reading in the House of Lords on 10 October 2017 and the committee stage started on 30 October 2017. The Bill will repeal and replace the Data Protection Act 1998 and supplement the General Data Protection Regulation, which will be directly applicable from 25 May 2018.

The Information Commissioners Office (ICO) confirmed that data controllers will still be required to pay a fee under the new data protection regime in 2018. The ICO has also published a checklist, Preparing for the law enforcement requirements (part 3) of the Data Protection Bill: 12 steps to take now, to assist employers in complying with the new GDPR guidelines.

Families and pregnancy. The Parental Bereavement (Pay and Leave) Bill 2017-19 was published on 13 October 2017 and received second reading on 20 October. The Bill will enable the government to introduce regulations in 2020 to give employees the right to at least two weeks’ leave following the death of a child (including stillbirth). Those with at least 26 weeks’ service will also be entitled to statutory bereavement pay.

In other news, the government has launched the employment tribunal fees reimbursement scheme and will extend the suspension of minimum wage enforcement for sleep-in staff. HMRC is investigating Ryanair over the use of Irish limited companies to limit the employment rights of pilots, while Acas has published guidance to assist employers in supporting staff with mental health issues, after new research revealed employers want more training and support around mental health. The EHRC has called on the government to introduce a “constitutional right to equality” to guarantee employment protections post-Brexit, despite Theresa May’s open letter to EU nationals in the UK , promising to make it relatively easy for them to remain in Britain post-Brexit The British Medical Association and medical training body HEE have reached an agreement that will grant junior doctors in England with contractual whistleblowing protection, although some have questioned the practicality of enforcing the agreement through the High Court. Finally, a survey has revealed that the British public support the scrapping of unpaid internships.

In our blog, Helen Crossland looked at Handling drug or alcohol issues at work, Katya Hosking evaluated Discrimination and the burden of proof , and Victoria Watson analysed the EAT’s decision that employers’ pension contributions should be included in a week’s pay.

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