REUTERS | Denis Balibouse

Discrimination. Advocate General Sharpston has given her view that the Pregnant Workers Directive (92/85/EC) should protect workers against dismissal from the moment they become pregnant, even before they have notified their employer of the pregnancy. This appears to be at odds with Article 2(a) of the Pregnant Workers Directive, and as the AG acknowledges, can be unfair to employers. In the UK, the general view is that a woman has no special protection until her employer is aware that she is pregnant. The ECJ’s decision on this issue is therefore awaited with interest.

The Presidents of the Employment Tribunals have issued joint guidance on  injury of feelings compensation in discrimination cases, setting out new Vento bands. There is now a lower band of £800 to £8,400, a middle band of £8,400 to £25,200 and an upper band of £25,200 to £42,000.

Employee data and monitoring. The Grand Chamber of the European Court of Human Rights has reversed an earlier ruling, and held that the Romanian courts had failed to protect an employee’s Article 8 privacy rights in relation to the employer’s monitoring of  his instant messaging The court sets out factors to be considered when assessing the monitoring of workplace communications.

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REUTERS | Tobias Schwarz

Until recently, most of us would have dismissed such a question as ridiculous, but until recently the employment and immigration status of EU nationals in the UK has been clear: they have the right to live, work and study in the UK under the principles of free movement, as do their dependants.

Hundreds of thousands of EU migrants have come to the UK over the last decade. They have contributed significantly to the UK economy, particularly in sectors where there are labour shortages in the resident labour market, such as hospitality, agriculture and healthcare. According to a GMB study of figures produced by the Office for National Statistics, in at least 18 specialist industries EU workers constitute more than 20% of the labour force. Continue reading

REUTERS | Dani Cardona

Under section 221-224 of the Employment Rights Act 1996 (ERA 1996) the amount an employee receives in contractual holiday pay will depend on whether they have “normal working hours” or not under their contract. Under the Working Time Regulations 1998 (SI 1998/1833) (WTR) the rate of holiday pay is expressed as requiring the same as the calculation of a week’s pay under the ERA 1996. In Bamsey v Albon Engineering and Manufacturing plc [2004] EWCA Civ 369, the Court of Appeal had held that the exclusion of voluntary overtime from a calculation of a week’s pay for the purposes of calculating both contractual and WTR holiday pay was lawful. Under this analysis, a zero hours employee could legitimately be paid nothing, if all of their hours were, essentially “voluntary”.

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REUTERS | Ali Hashisho

The cost of auto-enrolment and trying to avoid it

All employers are required to enrol their staff in a pension. This obviously comes at a price, sometimes a significant one. This is particularly true for small employers, that are operating in an increasingly tough economic environment, and it may be tempting for less scrupulous employers to try and avoid this obligation. Some may just refuse to do so. Others will be more clever, perhaps trying to create company structures to avoid the obligation. It may be that they will make unauthorised deductions to wages to make up that shortfall; so, for example, they may unlawfully reduce someone’s salary or unlawfully remove benefits such as a bonus. This issue is clearly on the Pensions Regulator’s radar, as it was covered in a blog in late 2016. Continue reading

REUTERS | Mike Hutchings

As the Summer comes to a close, the promised first data from the audit of racial disparities in public services is still awaited. This month, a survey conducted by the TUC has suggested that white workers earn an average of 8.3% more than their black counterparts despite holding the same educational qualifications and the Equality and Human Rights Commission published a strategy on gender, ethnicity and disability pay gaps. The strategy includes a recommendation to extend mandatory gender pay gap reporting to ethnicity and disability.

Following last month’s momentous Supreme Court decision on employment tribunal fees, we have published a new Practice note, Q&A: Practical issues arising from the abolition of fees in the employment tribunal. The note deals with frequently asked questions in response to the decision.

Working time and time off. Advocate General Sharpston has given an opinion on whether time spent on “stand-by” duty is working time. It is for member states to determine whether the quality of time spent on stand-by duty is undermined to such a degree by any restrictions imposed by the employer that it should be classified as working time.

The EAT has clarified that voluntary overtime, standby allowances and call-out payments count towards holiday pay if sufficiently regular. This decision follows the now well-established direction of travel for holiday pay cases, highlighting that voluntary elements of work are in principle to be treated no differently, for holiday pay purposes, than compulsory non-guaranteed overtime dealt with in Bear Scotland. However, some uncertainty does remain. The question of whether a payment is “normal” is a question of fact and degree for a tribunal, which means employers will need to take a view on how they treat borderline cases. Continue reading

REUTERS | Pilar Olivares

The Court of Appeal has considered the meaning of the words “in the public interest”, which were added to whistleblowing legislation by the Enterprise and Regulatory Reform Act 2013. While guidance was provided to employment tribunals, it is clear that a fluid approach should be adopted in considering what is meant by “a reasonable belief in the public interest”.

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Uplifts: where to next?

Following Pereira de Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ 879, it is clear that the Simmons v Castle uplift of 10% should be applied to awards of compensation for injury to feelings in discrimination claims in the employment tribunal. In this blog we consider whether the Simmons v Castle uplift should be applied to injury to feelings awards in whistleblowing claims. Continue reading

REUTERS | Eddie Keogh

After the recent landmark Supreme Court judgement on ET fees, which confirmed the importance of access to justice, we have seen reams of commentary on the possible implications and expected outcomes for claimants and respondents, and their lawyers.

What about the in-house perspective?

At BT we conduct our employment tribunal claims in-house, including all advocacy. Our in-house team therefore has a unique take on the impact of the introduction of ET fees in 2013 and their subsequent withdrawal, both in terms of the number of claims received and the way they were conducted.

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In Green v London Borough of Barking & Dagenham UKEAT/0157/16, the EAT held there should be no modification to the application of section 98(4) of the Employment Rights Act 1996 (ERA 1996), which tests the fairness of the dismissal, in the case of redundancy where existing employees must compete for a reduced number of new roles within the same organisation.


The claimant was one of three employees in a team performing broadly similar roles at the same level. In October 2012, the respondent proposed a restructure of the team. This involved the deletion of the three posts and the creation of two posts for which the existing three jobholders would compete by way of a written test and interview. As the lowest scoring candidate, the claimant was not offered a new role and was selected for redundancy. The claimant appealed against her redundancy, but the respondent refused to hear her appeal on the basis that it was not a redundancy selection but an assimilation process and as such there was no right of appeal on that issue.

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REUTERS | Jim Young

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.

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