2. Employment Law Update
Morag Hutchison
26 April 2017

3. CASE LAW UPDATE

4. Holiday Pay
Discrimination
Religious; Age; Sex; Disability; Indirect Discrimination
Employment Status
Dismissal
Notice of Termination
Subject Access Requests
Equal Pay

5. HOLIDAY PAY

6. Lock v British Gas Trading Ltd
Performance related commission must be included when calculating holiday pay.

7. King v The Sash Window Workshop
Can a worker, who was not being paid for his holidays during his employment, recover a payment in lieu on termination for his accrued but untaken leave?

8. DISCRIMINATION

9. Religious discrimination
Achbita v G4S Secure Solutions NV
A company rule prohibiting the wearing of visible signs of political, philosophical or religious belief is not directly discriminatory.
Bougnaoui and anor v Micropole SA
An employer’s reliance on a customer’s objections to being served by an employee wearing an Islamic headscarf as a reason for dismissal is discriminatory treatment.

10. Pendelton v Derbyshire County Council and the Governing Body of Glebe Junior School
Indirect discrimination – Employee disadvantaged by a religious belief in the sanctity of marriage.

11. Age discrimination Harrod v Chief Constable of West Midlands Police
Regulation requiring police officers with more than 30 years’ pensionable service to retire did not amount to age discrimination.

12. Sex discrimination
Is it illegal to force women to wear high heels in the workplace?

13. Disability discrimination
Donelin v Liberata UK Ltd
Failure to make reasonable adjustments - Constructive knowledge of the disability.
Gallop v Newport City Council
When should knowledge of disability be imputed to the employer to establish direct disability discrimination?

14. Taylor v Ladbrokes Betting and Gaming
Type 2 diabetes – is this a disability?

15. Carreras v United First Partnership Research
Long hours: When does an expectation become a practice?

16. Indirect Discrimination
Essop v Home Office; Naem v Secretary of State for Justice
To succeed with an indirect discrimination claim, is it necessary to establish the reason for the particular disadvantage to which a group is put, compared to another?

17. New test for indirect discrimination:
Is there a PCP;
Is there a context factor;
Do they combine to create a group disadvantage;
Is the same context factor a cause of the individual disadvantage?

18. EMPLOYMENT STATUS

19. Gig Economy Aslam v Uber BV Dewhurst v CitySprint UK Ltd
What is the reality of the entire working relationship?

20. ‘Worker’ status Pimlico Plumbers Ltd & Anor v Smith
Self-employed plumber: entitled to ‘worker’ rights.
Gilham v Ministry of Justice
District judge: ‘office holder’ not ‘worker’.

21. DISMISSAL

22. Wrongful dismissal Adesokan v Sainsbury's Supermarkets Ltd
Can gross negligence constitute gross misconduct?

23. Unfair Dismissal
Adeshina v St George's University Hospitals NHS Foundation Trust and others
Can procedural flaws and failure to comply with the Acas Code render a dismissal unfair?

24. O’Brien v Bolton St Catherine’s Academy
Long-term sick leave dismissal – when is it fair?

25. Whistleblowing Chesterton Global Ltd & Anor v Nurmohamed
When is a protected disclosure ‘in the public interest’?

26. NOTICE OF TERMINATION

27. NHS Trust v Haywood
In absence of any express contractual term, when does contractual notice of termination take effect?

28. SUBJECT ACCESS REQUESTS

29. Dawson-Damer v Taylor Wessing LLP
Subject access requests are ‘purpose-blind’.
Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd & Others
The search may be adequate even if “there may be things lurking beneath another stone which has not been turned over".

30. EQUAL PAY

31. Equal pay for equal value
Brierley and others v Asda Stores Ltd
Largest ever equal pay claim against a private sector employer expected this year.

32. LEGISLATION UPDATE

33. General Data Protection Regulations (GDPR)
Trade Union Act 2016

34. GENERAL DATA PROTECTION REGULATIONS

35. Notable changes Increased regulatory fine
More extensive information to be supplied to individuals
Greater ‘accountability’
Changes to consent
Reform of the concepts of ‘personal data’ and ‘sensitive personal data’
Change to the legal relationship between the data controllers and data processors.
New individual rights and some enhancements to existing rights

36. TRADE UNION ACT 2016

37. The ‘biggest shake-up of the law of industrial action in a generation’
Focus on helping employers prepare for the disruption of industrial action – not favourable to trade unions.
Increased ballot thresholds and more detailed ballot papers.
Industrial action ballots will now expire.
New requirements for supervising pickets.

38. OTHER DEVELOPMENTS

39. Gender Pay Gap
Tax Update
Tribunals
Grandparental Leave
Brexit

40. GENDER PAY GAP REPORTING

41. 250+ employees
‘Employee’ broadly defined
Name and shame?
6 April 2016: Gender pay gaps in bonus pay required to be assessed from this date.
6 April 2017: Regulations come into force.
4 April 2018: Last date for publication.

42. TAX UPDATE

43. IR35 ‘intermediaries legislation’ system
From 6 April 2017 – employers/agencies responsible for ensuring intermediaries pay the correct tax.
Changes will apply to thousands of workers who supply their services on a self-employed basis to public-sector employers.

44. Changes to the taxation of termination payments
Apprenticeship levy
Tax-free childcare scheme

45. TRIBUNALS

46. Tribunal fees Review of the introduction of tribunal fees:
70% decrease in no. of claims - Access to justice denied?
Proposal for free remission threshold increase and simplification.
R(on the application of UNISON) v Lord Chancellor

47. Devolution of the Scottish tribunal system.
Reforming the Employment Tribunal System in Scotland.
Judicial assessment procedure in England and Wales.

48. GRANDPARENTAL LEAVE

49. Shared parental leave and pay to be extended to working grandparents by 2018.
- Need for creative thinking around childcare for working families recognised by government.

50. BREXIT

51. Article 50 triggered 29 March 2017
Great Repeal Bill
What does this mean for employment law in the UK?

52. Morag Hutchison Partner
+44 (0)

54. How to Make a Tribunal Love You.
Jennifer Skeoch, Senior Associate.
26 April 2017

55. Keep the Tribunal Onside
What kind of person becomes an Employment Judge?
Create the path of least resistance.
Reduce your case to one sentence.
It’s complicated…
1000 facts means 1000 findings.

56. Don’t pick unnecessary fights.
SIBLING SQUABBLES
Don’t pick unnecessary fights.

57. Equipped for Success You need the right material to prove your story.
Witnesses who can speak from their own knowledge about the issues.
Contemporaneous documentation is your next best tool.

58. DISMANTLING THE OTHER SIDE’S CASE

59. Exposing Contradictions
Evidence contradicts a contemporaneous written record;
Evidence contradicts other evidence by the same witness;
Evidence contradicts evidence by another witness; or
Evidence contradicts common sense.

60. Settlement strategy

61. Sophisticated Settlement
The first myth.
The second myth.
The right questions in the right order:
Can we afford to lose this case?
Can we afford to win this case?
What are the prospects of success?

62. IN PREPARATION LIES SUCCESS

63. Preparing for Tribunal
Your statement is your friend…
Advantages to preparation:
The story is straight long before it’s subject to challenge;
Opportunity to think things through results in clear and logical evidence;
No surprises on the day from documents;
The evidence is yours and yours alone; and
Areas of concern are identified and addressed pre-hearing.

64. Giving evidence

65. Giving Evidence: The Golden Rule
Tell the truth
No really, tell the truth.

66. Giving Evidence: Common Issues
The infinitesimal possibility
Filling memory gaps
Creating memory gaps
Mea culpa

67. Giving Evidence: Common Issues
Hypothetical Scenarios become reality.
Opening up the closed question.
Passing the memory test.
Do. Not. Fence.
The cracked record.

68. Jennifer Skeoch Senior Associate
+44 (0)