Employment Bulletin 

DALLIMORE HelenTo help you keep quickly up to date with employment law, we summarise the key developments arising from cases, guidance, legislation and consultations for this month.

If you would like to discuss any of the points raised, please get in touch with Helen Dallimore, Senior Associate, or with your usual contact in the Foot Anstey employment team.

 

In the courts...recent case updates

Supreme Court delivers its judgment in the most significant win for worker's rights to date

The Supreme Court has confirmed in the Pimlico Plumbers case that a plumber, whose contract described him as an independent contractor, was actually a 'worker' and therefore entitled to a host of legal rights. For more information, please see our article here.

Disclosures in whistleblowing claims must contain specific factual content to attract protection

The Court of Appeal in Kilraine v London Borough of Wandsworth has upheld a tribunal's finding that an employee did not make protected disclosures to her employer in the course of two complaints of bullying and harassment. In making this finding the Court confirmed that, when considering whether the disclosure 'qualifies' for whistleblowing protection, it is the factual content that must be assessed.

In this case, the Claimant brought a whistleblowing claim following dismissal from her post as an education achievement project manager. She argued that she had made protected disclosures in the form of letters and emails complaining of 'incidents of inappropriate behaviour', and had suffered detriment and dismissal as a result. Both the Employment Tribunal and the Court found that the disclosures did not convey sufficient information to fall under whistleblowing protection but, in making this finding, noted that an allegation may also contain information. They therefore warned against assuming that these concepts were mutually exclusive and confirmed that the context and surrounding communications of an allegation may make it capable of being a protected disclosure.

Unions can be held liable for discrimination by their representatives

The Court of Appeal has upheld the EAT's ruling in Unite v Nailard that two union officials were agents of the union and the union could therefore be held vicariously liable for their discriminatory conduct towards a colleague. Unite sought to argue that as the Claimant was not a third party and their officials only had authority to represent the union externally, they could not be considered the union's agents during the period of discriminatory conduct. The EAT rejected this argument, stating that there was no justification for limiting settled principles of employer's liability in this way; the wrong was done in the course of the officials performing their authorised functions and the union was therefore responsible for their actions.

Equality Clause: Comparator being promoted

According to the EAT in Reading Borough Council v James, an equality clause remains in place regardless of whether the comparator is promoted out of their role. Here, a group of female employees brought equal pay claims against the Council, asserting that their work was of equal value to that of their male colleague, a highways operative.

The Council argued that, as the male colleague had ceased to be a valid comparator since he was promoted in 2006, a new comparator was required. The EAT dismissed the appeal, re-asserting the key principle of equal pay for work of equal value. They confirmed that once a Claimant's right to equal pay has been established, their contract will remain effectively varied until it is terminated or varied again. As a result, a change in the comparator's circumstances may not defeat the implication of equal pay, nor will it necessitate undertaking a new comparative exercise.

Union representative unfairly dismissed despite misuse of confidential information

In Morris v Metrolink RATP Dev Ltd, the Court of Appeal has restored an employment judge’s finding that the dismissal of a trade union representative was automatically unfair, despite his use of leaked information. Mr Morris had received a photograph of a diary entry made by a line manager in relation to an assessment, which the manager should not have been involved in. Although Mr Morris had immediately informed HR and raised a collective grievance, he was dismissed for having stored and shared the confidential information. The Court, in finding for Mr Morris, focused on whether keeping the photograph was separable from the context in which it occurred (raising the collective grievance). They found this not to be the case, meaning that the limited use the information was put to, which directly affected the members' interests, did not take it outside the scope of protection for trade union activities.

Disciplining for 60 days' sickness absence was disability discrimination

The EAT has found, in DL Insurance Services Ltd v O'Connor, that an employer issuing a warning to a disabled employee for a 60-day sickness absence related to her disability amounted to discriminatory conduct. Although the EAT noted that DLIS had treated Ms O'Connor with great sensitivity and adopted the legitimate aim of ensuring adequate attendance levels, the warning had not been a proportionate means of achieving that aim. DLIS could not adequately explain their reasoning for the warning and further failures in due process contributed to the lack of justification.

It is therefore clear that, although 60 days in 12 months is a long period of sickness absence, where the sick leave relates to a disability an employer must still be able to explain why they deem certain actions appropriate and necessary in the specific circumstances to be able to objectively justify it.

EAT holds no umbrella contract when considering disputed employment status

The Claimant argued that she had been unfairly dismissed from her role as a paid Appropriate Adult providing support to vulnerable people in police custody in the case of Hafal Ltd v Lane-Angell UKEAT/0107/17. However, in order to do so, she was required to establish that she was an employee and that the Tribunal could hear the claim.

The Tribunal initially held that she was an employee pursuant to an umbrella contract (an overarching contract which is made up of many smaller and individual contracts) which created mutuality of obligation. However, the EAT did not agree and held that the Tribunal had failed to take into account the terms of appointment and focused primarily on the facts of the relationship. The letter of appointment was vague and it did not appear that there was an obligation to provide or accept work. The EAT highlighted that the "expectation that the Claimant would provide work is not the same as the obligation to do so."

Legislation and Guidance

Immigration Minister reveals new EU Settlement Scheme for individuals seeking to apply for 'settled status'

The Immigration Minister has released updated guidance to clarify the process for those EU citizens seeking to remain in the UK post-Brexit. The guidance document highlights many key areas of the process and introduces a number of changes to the plans that had already been discussed. For more information, please see our article here.

Financial reporting: the draft Companies (Miscellaneous Reporting) Regulations 2018

The draft Companies (Miscellaneous Reporting) Regulations 2018 have now been published and would require, amongst other things, a range of new reporting requirements for large and listed companies including the following:

  • Companies to include a statement describing how their directors have had regard to the matters set out in section 172(1) of the Companies Act 2006, if they are already under an obligation to prepare a strategic report;
  • Companies employing more than 250 staff to provide a directors' report on the extent of employee engagement;
  • Relevant companies to include a statement of engagement with customers and suppliers within the directors' report, detailing how directors have had regard to the need to foster relationships with suppliers, customers and others;
  • Very large companies to provide a statement of their corporate governance arrangements; and
  • Quoted companies to publish, as part of the directors’ remuneration report, the ratio of their CEO’s total remuneration to the median full-time equivalent remuneration of their employees.

These represent a continued drive towards transparency in financial reporting and, if approved by Parliament, the regulations will come into force on 1 January 2019. The new requirements will apply to financial years commencing on or after 1 January 2019. For more information click here.

Time Off for Public Duties Order 2018 extends the range of civic duties for which employees are entitled to take unpaid leave

The Time Off for Public Duties Order 2018 will come into force on 1 October 2018 having initially been laid before parliament on 30 May 2018. The Order amends part of the Employment Rights Act and grants unpaid time off for four specific groups of volunteers in the criminal justice system which monitors the conditions of those in custody.

Employment tribunal statistics show the continued increase in single claims in the first quarter of 2018

The Ministry of Justice has recently published the employment tribunal quarterly statistics for January to March 2018. These indicate a continued trend towards an increasing number of single employment claims. Compared against the same quarter in 2017, the numbers of single claim receipts have increased by 118%, largely due to the abolition of employment tribunal fees last year.

News

Brexit - On 26 June 2018, the European Union (Withdrawal) Act 2018 (EUWA) received Royal Assent. This legislation will establish the legislative framework for the UK's scheduled withdrawal from the EU on 29 March 2019. In particular, it repeals the European Communities Act 1972 and ends the supremacy of EU law and preserves EU law as it currently stands at the moment of exit. How a transitional period will impact on the EUWA is currently not clear. The government is now expected to begin its legislative programme to amend primary and secondary legislation (estimated to be around 800 pieces of legislation) so it continues to function post Brexit.