1. Employment Law Update June 2017
presented by John Sprack for LawWorks

2. Employment status -background
Employees: contract, mutual obligation, personal performance and control,overall features of contract
Workers: employee or under a contract personally to perform work or services except if for client/customer as part of a business or profession
Discrimination: as for worker, but with no exclusion for those acting for client/customer. Also agency workers etc specifically included

3. Employment status - workers (1)
Cases on discrimination and worker status do not depend on whether the claimant is an employee
They do depend on whether there is an obligation to do the work personally
Recent cases have also dealt with the extent to which mutual obligation (to provide work/to do the work) is relevant

4. Employment status - workers (2)
Capita Translation v Slauciunas (UKEAT/0181/16): mutuality of obligation between assignments is relevant for worker status
`Pimlico Plumbers v Smith [2017] EWCA Civ 51: the Court of Appeal sets out factors to determine whether a worker is employed personally to do work
If right to substitute is unfettered or only subject to the substitute being qualified, that is inconsistent with personal obligation
If the right to substitute is confined to cases where the worker is unable to work, that will usually be consistent with personal obligation
It will also be consistent with personal obligation where the right to substitute is subject to an absolute discretion to refuse or consent

5. Employment status - tax position
The First Tier Tax Tribunal has held in Dhillon v HMRC that you must look at the whole picture, rather than apply a checklist when determining whether someone is an employee for tax purposes
Under tax legislation, there is no “worker” status - you are an employee or an independent contractor
See also employment-status-for-tax/setup
In employment law, tax status does not determine employment status, but may be a factor to consider

6. Employment status - Reviews
Taylor Review into workers rights and the gig economy -practices-in-the-modern-economy
See also government review on employment status (2015) oads/attachment_data/file/585383/employment- status-review-2015.pdf

7. Employment status - Taylor Review
Reports suggest it will recommend right to request a fixed number of hours for those on ZHCs
Refusal would have to be for “serious business reasons”
Other ideas floated: higher minimum wage for ZHC
Presumption of employment requiring evidence to displace and prove self-employed status
Give those currently classified as “workers” the full range of employee rights

8. Direct discrimination
Chief Constable of Kent v Bowler (UKEAT/0214/16) illustrates that one must avoid the inference that unreasonable conduct necessarily means discriminatory behaviour
Applying Igen v Wong
incompetent handling of the grievance process and the lackadaisical attitude of the investigator did necessarily not mean Kent Police had discriminated against Bowler

9. Indirect discrimination (1)
Has R applied a PCP to C?
Does it put those with whom C shares a protected characteristic at a particular disadvantage?
Does it put C at that disadvantage?
Can R show it is a proportionate means of achieving a legitimate aim?

10. Indirect discrimination (2)
In Essop v The Home Office [2017]UKSC 27 the SC found that one did not require an explanation for why a provision criterion or practice puts a group at a particular disadvantage
Lady Hale set out six salient features of indirect discrimination (see next slide)

11. Indirect discrimination (3)
no need to explain why PCP caused disadvantage
no causal link between less favourable treatment and protected characteristic
the context factors are many and various
no need for every member of the disadvantaged group to be placed at a disadvantage
common to establish on basis of statistics
always open to show justification and no stigma attached to having to do so

12. Indirect discrimination (4)
Where a defence of justification is available to a claim of discrimination, the employer is entitled to select the legitimate aim: Harrod v West Midlands Police [2017] EWCA Civ 191
It should not be rejected on the basis that the employer should have pursued a different aim with a less discriminatory impact

13. Disability discrimination (1)
s15 Equality Act 2010 deals with “discrimination arising from disability”
to determine whether the section is engaged is a two stage process
1. what is the “something” that is the reason for the unfavourable treatment?
2 does that “something” arise in consequence of the disability?

14. Disability discrimination(2)
Two long-term sickness cases on dismissal where disability was involved
City of York Council v Grosset (UKEAT/0015/16) dismissal held to be fair but discriminatory - it was because of something arising in consequence of G’s disability
O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145: dismissal unfair and also discriminatory - same standard applied to both claims by Court of Appeal

15. Religion or belief
Achbita v G4S Secure Solutions (C-157/15): held by CJEU that banning the wearing of an Islamic headscarf at work did not constitute direct discrimination
Employer’s policy held to be non-discriminatory because it banned all religious symbols worn overtly
It was indirectly discriminatory, but neutrality was a legitimate aim if restricted to those dealing with customers
But was dismissal proportionate?

16. Gender pay reporting
It applies to employers with 250+ employees, commencing April 2017
They must publish figures on their website based on the snapshot date of 5 April (31 March for public sector)
Must be published within a year
Must include mean and median gender pay gap and bonus pay gap
Also the number of males and females within each pay quartile
No legal enforcement mechanism in the Regulations

17. Unfair dismissal - previous warnings
Stratford v Auto Trail VR Ltd (UKEAT/0116/16): an expired warning can be taken into account in deciding whether a dismissal is fair or unfair
but only if reasonable to do so
Perry’s Motor Sales Ltd v Edwards (UKEAT/0061/16): the validity of a previous warning should only be examined if there were grounds to consider it “manifestly inappropriate” or issued for “an oblique motive”

18. National minimum wage New rates for Age 25+ £7.50 Age 21+ £7.05
Apprentice rate £3.50

19. Compensation limits
Limit on weekly amount for statutory redundancy payment or basic award - £489 from 6 April (was £479)
Limit on compensatory award for unfair dismissal from 6 April £80,541 (was £78,962) or 12 months wages

20. Deposits
Hemdan v Ismail (UKEAT/002/16): the level of a deposit order should not be set so high that a claimant cannot comply with it (deposits of £75 reduced to £1 for a claimant on benefits)

21. Tribunal fees
Government has published long overdue report - “fees discourage but do not prevent claims”
Statistics on claims - number presented dropped by 80%
Successful claims dropped from 15% to 13% of the total
annual revenue for government is about £9 million in total
Some minor movement on remission and on proceedings for recovery of redundancy payments etc where employer is insolvent
result in Unison case expected in July