In brief – December monthly round up

To 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.

In this bulletin:
  1. In the courts... recent case updates
  2. New Guidance and Consultations
  3. News

In the courts... recent updates

Uber drivers are workers, not self-employed

The Court of Appeal has upheld the decision of the Employment Appeal Tribunal (EAT) that Uber drivers are workers, in Uber BV v Aslam & ors. Our article on the EAT decision can be found here. The Court held that the drivers have worker status as they are personally performing work for Uber.

Uber has been given permission to appeal to the Supreme Court. We will report on developments in this case in future bulletins.

Tendency to steal excluded from definition of disability

In Wood v Durham County Council, the EAT upheld an Employment Tribunal’s decision that the dismissal of an employee for shoplifting, which he claimed to be a manifestation of his post-traumatic stress disorder (PTSD) and associative amnesia, was not disability discrimination.

The Claimant was an Anti-Social Behaviour Officer. As part of his role with the Council he had to abide by a code of conduct, both inside and outside of the workplace. In addition, as part of his role he was required to have a Non Police Personnel Vetting (NPPV) Level 2 clearance. Following an incident where the Claimant left Boots without paying for several items, he failed to pass the NPPV clearance check. A disciplinary process was commenced by the Council and the Claimant was subsequently dismissed. The Council relied on criminal conduct outside the workplace, withdrawal of NPPV clearance and the risk of reputational damage as reasons for dismissal. The Claimant had post-traumatic stress and associative amnesia and argued that when he left Boots he was in a dissociative state and therefore forgot to pay for the items and, subsequently, to inform the Council of the incident. The Claimant brought claims for indirect discrimination, discrimination arising from disability and failure to make reasonable adjustments.

The ET rejected the Claimant's claim, as his dismissal arose from an excluded condition under the Equality Act 2010 (i.e. a tendency to steal). The Claimant appealed, but the EAT found that the Tribunal had directed itself properly and had not erred in finding that the effective cause of the Claimant's dismissal was an excluded condition and therefore not a disability subject to protection under the Equality Act.

Supreme Court defines 'unfavourable' treatment for disability discrimination purposes

The Supreme Court held in Williams v Trustees of Swansea University Pension and Assurance Scheme and anor that a disabled employee who had reduced his hours from full-time to part-time before taking ill-health retirement was not treated 'unfavourably' under s15 of the Equality Act 2010 because his pension was based on his final part-time salary.

The Claimant was 38 when he retired from employment at Swansea University through ill-health caused by disabilities. He was entitled to receive a pension based on his final salary. However, as he had been working fewer hours in the last year of his employment, his salary was adjusted and the pension he received was half what it would have been had he taken ill-health retirement when still working full-time. The Claimant believed he had suffered unfavourable treatment and brought a claim for discrimination arising from disability.

The Supreme Court held that it was incorrect to equate the concept of 'unfavourable treatment' in s15 of the Equality Act 2010 with concepts such as 'detriment' and 'disadvantage' in other provisions of the Act. The Court held that there was nothing intrinsically unfavourable or disadvantageous about the award of the pension to the Claimant, as it was only due to his ill-health that he was receiving the pension in the first place and advantageous treatment cannot be said to be 'unfavourable' because it is insufficiently advantageous. The Court's unanimous decision upheld the decision of the Court of Appeal and EAT.

Workers without personal service obligation have no right to bargain collectively

In R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee, the High Court dismissed the judicial review challenge brought by IWGB, that Deliveroo riders had a right to collective bargaining under Article 11 of the European Convention on Human Rights. The Central Arbitration Committee had previously found that the Deliveroo riders are not "workers", as their contracts contain a right of substitution. The High Court dismissed the judicial review, as none of the ECHR case law on which the IWGB sought to rely extended Article 11 rights outside an employment relationship. The Court held that since the riders were not in an employment relationship with Deliveroo, the collective bargaining rights were not engaged. This is consistent with the original decision given by the Central Arbitration Committee (CAC). Interestingly it bucks the trend of other gig economy cases where workers have been found to be in an employment relationship with their gig economy employer.

Right to pay in lieu is not automatically lost for worker who does not request leave

The European Court of Justice (ECJ) held in Kreuziger v Land Berlin and Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV v Shimizu, that a worker who does not apply for paid annual leave during employment does not automatically lose the right to an allowance in lieu of untaken leave on termination.

In both these German cases the employees had not taken all their leave when their employment ended. Therefore they requested payment in lieu of their untaken leave from their employers. When the employers refused, relying on national law, the employees brought proceedings. The employers sought a ruling from the ECJ on the interpretation of Article 7(2) of the EU Working Time Directive (No.2003/88), which provides that ‘the minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated’.

The ECJ held that it was permissible for national law to set down the conditions for exercising the right to annual leave, including provision for the right to annual leave to be lost at the end of a reference period. However, despite this, the ECJ considered it was not compliant with Article 7(2) for national law to prescribe an automatic loss of rights in such circumstances, without the employer first verifying that the worker had an effective opportunity to take their outstanding annual leave. Employers must ensure they give a departing worker the opportunity to take the leave owing to them and show that they encouraged the worker to do so, while informing the worker in an accurate and timely manner of the risk of losing that leave at the end of the applicable reference period.

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Law Commission Consultation on Employment Law Hearing Structures

The Law Commission published a consultation paper in September 2018, concerning the jurisdiction of the Employment Tribunal, Employment Appeal Tribunal and the civil courts in employment and discrimination matters.

The consultation contains 54 questions and provisional proposals on which the Commission is seeking views from the public and specialist stakeholders. More information can be found here. Responses must be submitted by 11 January 2019.

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Government publishes Good Work Plan

 The Government has set out a package of new legislation to upgrade workers' rights. The proposed workplace reforms take forward 51 of the 53 recommendations from the Taylor Review of modern working practices.

Key proposals include:

  • Extending the right to a written statement of terms and conditions to include detail on rights such as eligibility for sick leave and pay and details of other types of paid leave to workers and requiring the employer to give it to the worker on day one
  • Changing the rules on continuity of employment, so that a break of up to four weeks (currently one week) between contracts will not interrupt continuity
  • Extending the holiday pay reference period from 12 to 52 weeks to ensure those in seasonal or atypical roles get the paid time off they are entitled to
  • Abolishing the Swedish Derogation, which gives employers the ability to pay agency workers less than their own workers in certain circumstances
  • Increasing the maximum employment tribunal fine from £5,000 to £20,000 for employers who are demonstrated to have shown malice, spite or gross oversight

The Government is also committing to improve and streamline employment status tests to reflect the reality of the modern working relationships.

We will keep you updated on developments in 2019. You can read the Government's Good Work Plan here.

Government publishes White Paper on post-Brexit immigration

The Government has revealed its immigration policy for post-Brexit Britain in a White Paper published this week. Key proposals include:

  • Scrapping the current cap on the number of skilled workers such as doctors or engineers from the EU and elsewhere
  • A consultation on a minimum salary requirement of £30,000 for skilled migrants seeking five-year visas No requirement for visitors from the EU to have visas.

For more information see here. The new system is planned to be phased in from 2021. We will report on developments in future bulletins.

European Commission reveals no-deal plans

At the time of writing the European Commission has just released details of the measures it is taking to limit disruption in areas such as finance and transport should there be a "no-deal" Brexit. The Commission has stated that visas will not be required for UK citizens to spend short periods in EU countries but a residence permit or a long-stay visa will be required for stays of over 90 days.

More information can be found here. We will keep you up-to-date with developments on Brexit in future bulletins.

GMB union urges employers to sign up to a Work to Stop Domestic Violence charter

On 29 November 2018, the House of Commons launched a five-point charter designed to help employers offer support at work for victims of domestic violence. The charter recommends that employers should provide access to training, confidential services and foster an open atmosphere, where employees are encouraged to reach out for help.

Research reveals the prevalence of unpaid internships

The Sutton Trust, a social mobility foundation, has recently published its report "Pay as you go?" which raises concerns on internship pay, quality and access in the graduate jobs market. The report recommends that interns should be paid at least the national living wage of £9 an hour, that recruitment processes are fair and transparent and based on merit rather than nepotism and that universities step-up their policies around connecting students with internships. The Sutton Trust is also backing the Unpaid Work Experience (Prohibition) Bill, which seeks to prohibit unpaid work experience for periods exceeding 4 weeks and place an obligation on employers to pay interns at least the national minimum wage, or national living wage for those over 25.

BEIS updates minimum wage guidance to include unpaid work trials

The Department for Business, Energy and Industrial Strategy (BEIS) has updated its guidance on calculating the minimum wage to include unpaid work trials. The guidance sets out a number of factors that may be taken into account when considering whether a person should be paid. However, the key consideration is that the longer a trial period continues, the more likely it is that it will result in a contract to provide work, meaning the national minimum wage or national living wage becoming due.

Employment Tribunal to determine whether Ethical Veganism is protected by Discrimination Legislation

A new tribunal claim which will decide whether "ethical veganism" should be a protected characteristic under the Equality Act, has attracted a lot of media attention. The Claimant, Mr Casamitjana, alleges that he was dismissed after raising concerns to the League Against Cruel Sports that its pension fund was being invested into companies involved in animal testing. Mr Casamitjana alleges that the decision to dismiss him was reached because of his philosophical belief in ethical veganism. The claim is rejected by the League Against Cruel Sports, stating the Claimant was dismissed for reasons of gross misconduct. The case has been listed for next March. If the Claimant is successful and the Employment Tribunal determines that veganism is a protected philosophical belief, the discrimination claim will proceed to a full hearing.

Employment Tribunals Update

The September 2018 meeting minutes of the Employment Tribunals National User Group have been published. Key points of interest:

  • There has been a 165% increase in single claims, when comparing the quarterly statistics for April to June 2018 with the same quarter in the previous year.
  • In some regions, cases are being listed for their final hearing 12-18 months from receipt of the ET1, largely due to a shortage of judges. However, an ongoing recruitment campaign is expected to lead to the appointment of new salaried and fee-paid employment judges from January 2019 onwards.
  • 14,500 refund applications were made up to the end of June 2018, resulting in 12,400 actual refunds, totalling £10.6 million.
  • WiFi is now available in all Employment tribunal buildings at "PCU WiFi".