REUTERS | Lucy Nicholson
February 27, 2019

The Good Work Plan: what next for employment law?

At the end of 2018, the government announced the Good Work Plan, which develops its response to the Taylor Review. It describes the plan as “the biggest package of workplace reforms for over 20 years”. This blog considers some of the more eye-catching proposals aimed at tackling “one-sided flexibility” in the working relationship, including the proposals to align the different tests of employment status, abolish the Swedish derogation for agency workers and introduce a new right for workers to request a more stable contract.

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REUTERS | Ali Hashisho
January 10, 2019

Direct age discrimination and the provision of permanent health insurance (PHI) following Smith v Gartner and Whitham v Capita: a call for clarification

Does an employer directly discriminate against its employee because of his or her age by ceasing PHI payments prior to the employee reaching the greater of age 65 or their state pension age?

The employment tribunal (ET) in Whitham v Capita Insurance Services Ltd ET/2505448/12 answered this question with an emphatic yes. However, the EAT in Smith v Gartner UK Ltd UKEAT/0279/15/LA has seemingly given a different impression. The point was not properly ventilated in Smith v Gartner and, further still, the EAT’s discussion in respect of a claim under section 39(2) of the Equality Act 2010 (EqA 2010) is strictly obiter. The law is therefore in a state of flux and an appellate decision is required to settle the issue.

This blog is limited to the question of direct age discrimination. Be aware that such cases frequently lead to other arguments such as unlawful deduction from wages and indirect discrimination. Continue reading →

REUTERS | Thomson Reuters
December 5, 2018

Office banter: a dangerous path to tread?

There are some phrases which make an employment lawyer’s heart sink, and pride of place amongst them undoubtedly goes to “but it was just office banter”. Usually a signal that something offensive has indeed gone on within the workplace, it might be thought that short shrift is likely to be given to such a defence by the employment tribunal. In fact, background context is key, and a culture of “banter” can, in the right circumstances, help to explain potentially discriminatory conduct and protect an employer from a discrimination claim. Such was the outcome at both first-instance and appeal to HHJ Stacey in Evans v Xactly Corporation Ltd UKEAT/0128/18. Continue reading →

REUTERS | Yuriko Nakao
November 29, 2018

Whistleblowing: where are we after Osipov?

In Timis v Osipov [2018] EWCA Civ 2321, the Court of Appeal confirmed that employees who have been dismissed for making a protected disclosure can bring a claim against an individual co-worker for the detriment of dismissal, and a claim for vicarious liability against the employer, in addition to an unfair dismissal claim. 

While it is difficult to argue against the Court of Appeal’s reasoning, the decision creates some anomalies, and will raise interesting tactical questions for claimants and respondents alike.  Continue reading →

REUTERS | Shamil Zhumatov
November 22, 2018

Privilege in internal investigations

Internal investigations are increasingly being conducted by companies not only on regulatory grounds but also in response to employment issues such as whistleblowing and discrimination allegations. In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal has significantly widened the scope of legal professional privilege in the context of an internal company investigation. It will now be easier for the employer to assert privilege over employees’ witness statements and other documents generated in an investigation. Continue reading →

REUTERS | John Kolesidis
October 31, 2018

“Do you get all of the service charge?”

Look no further than this press release from BEIS on 1 October 2018 to gauge the government’s enthusiasm for highlighting that it has been thinking about policy and issues other than Brexit over the last couple of years:

“The government has announced plans to ensure that tips left for workers will go to them in full. While most employers act in good faith, in some sectors evidence points towards poor tipping practices, including excessive deductions being made from tips left by customers. New legislation, to be introduced at the earliest opportunity, will set out that tips must go to the workers providing the service.”

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REUTERS | Denis Balibouse
October 11, 2018

To disclose or not disclose: general principles, and a recent case on “the iniquity principle”

Deciding whether to provide discovery of a given document can be one of the most challenging aspects of dealing with a tribunal or court claim. This is particularly so where the document raises issues of confidentiality. Refusing to disclose a document, or series of documents, can result in an application for specific disclosure. The over-arching test to be applied in determining such an application is whether an order for disclosure is necessary for fairly disposing of the proceedings. A judge considering such an application is exercising a discretion. Accordingly, to successfully challenge it on appeal, it must “exceed the generous ambit within which reasonable disagreement is possible” (Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343). Continue reading →

REUTERS |
September 27, 2018

Daughters’ Rights: challenging sex discrimination in the House of Lords

Five women are taking the UK to the European Court of Human Rights alleging sex discrimination, due to their ineligibility to stand for by-elections in the House of Lords because of their gender. All but one of the 92 current hereditary peers are men. The list of 210 hereditary peers willing to be considered on the register of hereditary peers (for by-election) includes just one woman, Baroness Dacre. This is pretty astonishing less favourable treatment on the grounds of gender, or a marked disparate impact if considered in indirect sex discrimination terms. Continue reading →

REUTERS | Ali Jarekji
September 17, 2018

Limiting discrimination claims: what happens now?

There are real difficulties for everyone involved (including the tribunal) in dealing with diffuse claims of discrimination, which indiscriminately allege various different types of discrimination, harassment and victimisation, and take a scatter gun approach to the facts underlying such claims. Such difficulties led the Court of Appeal to say that “Attempts must be made by all concerned to keep discrimination proceedings within reasonable bounds by concentrating on the most serious and the more recent allegations.” (Hendricks v Commissioner of Police [2003] IRLR 96, Mummery LJ.)

As we will see, that initial comment led to some employment judges taking increasingly drastic (and in some cases draconian) case management decisions. The EAT’s decision in Tarn v Hughes UKEAT/0064/18DM has made such interventions much less likely. This blog considers what has happened since Hendricks, the impact of Tarn, and what respondents can do now to try and limit unwieldy discrimination claims. Continue reading →