As we are a month into 2018, it’s a good time to reflect on the important rulings and decisions from the previous year. Here is some of the prominent case law that has arisen in 2017 and as would be expected, all with subsequent implications for employers and employees alike.
Tribunal Fees Abolished
In the case of R (on application of UNISON) v Lord Chancellor, the Supreme Court’s decision to abolish Employment Tribunal fees and render them unlawful will no doubt impact the future number of claims as many commentators and experts have attested to in the recent press. The figures have shown an upward trend, as the CIPD reported a 66% increase in Tribunal claims in the first quarter since the fees were abolished in July 2017.
The other interesting aspect of this ruling was that the fee system has been discriminatory against women. The evidence showed that more women were likely to bring a claim than men. This was with reference to Type B claims (Type A claims being related to less complex matters, such as unlawful deduction from wages and the higher fee Type B claims include matters relating to unfair dismissal and discrimination). As is the test in all discrimination matters, it was not considered a proportionate means of achieving a legitimate aim.
Considerations for employers: In light of the above, there may be a greater risk of claims being raised on a more frequent basis. The ACAS early conciliation service is likely to have a greater role during any potential settlement process. This year will of course be a good indicator of the ongoing impact of the ruling.
Injury to Feelings
Following the case of Pereira de Souza v Vinci Construction, the Court of Appeal confirmed that a 10% uplift does apply in discrimination claims. This outcome may increase the amount of compensation that employers have to pay in such cases. Following this judgment, the Employment Tribunals Presidential Guidance sets out that claims presented on or after 11th September 2017 would fall under the following, known as the Vento Bands:
- Lower band (less serious cases): £800 to £8,400
- Middle band (cases that do not merit an award in the upper band): £8,400 to £25,200
- Upper band: £25,200 to £42,000
- Exceptional cases: potentially in excess of £42,000
Considerations for employers: The basis for any potential discrimination issues, in an ideal world, should be eliminated by design of the policies and practices in place. However, in practice this is not necessarily a simple task. As is always the case, employers need to continue to demonstrate and apply adequate and fair HR procedures to mitigate the risk.
Numerous cases this year have addressed if individuals were correctly defined as self-employed or were in fact a worker with rights to the national minimum wage and holiday pay. Both Aslam and others v Uber BV and Pimlico Plumbers Ltd and another v Smith were important cases in this regard.
In the case of Aslam and others v Uber BV, the Employment Appeal Tribunal (EAT) agreed with the original decision that the drivers should be classed as workers. The judgment was based on numerous factors including evidence of control by Uber, where drivers were obliged to accept a minimum number of trips and were penalised if the minimum target was not met. Additionally, drivers go through a recruitment interview and induction process, these elements were not deemed consistent with the self-employed engagement that had been argued by Uber.
Similarly, the Court of Appeal’s ruling in Pimlico Plumbers Ltd and another v Smith said that Mr Smith had been a worker during his time with the company, despite the written agreement in place stipulating that he was self-employed and that he was working for his own business. Some key elements of the case included that Mr Smith was required to wear company logo uniform, use a company vehicle with a GPS tracker attached and to work at least a minimum number of weekly hours.
The Court of Appeal decided that Mr Smith was obliged to provide his services personally. The Court concluded that at the least there would be a conditional right of substitution to undertake the work. There had been no example at Pimlico Plumbers of a plumber having sub-contracted all of their work which would be an indicator of self-employed status.
Considerations for employers: These cases really bring home the importance of understanding the fundamental requirements of the services offered and how they are delivered. Employers are advised to take a step back and assess the arrangement before establishing a commercial arrangement. If there is any doubt, it is always recommended to seek professional advice. Similarly, the nature of the working arrangement can evolve over time and as such a periodic review of worker status rights is advantageous.
Shared Parental Leave
The introduction of Shared Parental Leave (ShPL) in December 2014 has largely been a positive move to better flexible arrangements for working parents. However, the revised provisions have also given rise to discrimination claims in relation to pay disparity between men and women.
In the case of Ali v Capita Management Ltd, a father successfully argued that his employer’s failure to match enhanced rates of pay when taking ShPL amounted to direct discrimination. The Tribunal ruled that not offering enhanced pay to a Mr Ali who took ShPL after his wife was diagnosed with postnatal depression amounted to direct discrimination. Mr Ali’s employer offered 2 weeks full pay for paternity leave, whist providing 14 weeks full pay for mothers on maternity leave.
In the case of Snell v Network Rail, an employment tribunal in Scotland awarded Mr Snell £28,321 over Network Rail’s policy of giving a period of full pay to mothers and primary adopters on shared parental leave, but paying only statutory shared parental pay to partners and secondary adopters.
There is likely to be more development in this area pending further case law outcomes and as awareness and the uptake of ShPL increases.
Considerations for employers: As commented earlier in the article, potential discrimination factors should be at the forefront of HR policy design. Enhanced parental leave arrangements can be highly advantageous for the employer brand and support talent retention. What does seem apparent is that there should be a degree of synergy with enhanced parental leave schemes offered by companies, to help avoid gender related pay disparity.
This issue made headline news back in 2016, namely when a receptionist was allegedly sent home for refusing to wear high heels at work and led to a petition being lodged which attracted more than 150,000 signatures. In response to this, the Government concluded that the current legislation was sufficient and that these actions were unlawful under these provisions. The Government was expected to publish new guidance on workplace dress codes in 2017. This will be something to look out for in 2018 for alignment in current dress code policies.
There were also some useful judgement made by the European Court of Justice (ECJ) in the cases of Archbita and another v G4S Secure Solutions NV and Bougnaoui and another v Micropole SA. The first case concerned a Belgian company that had dismissed an employee for wearing a headscarf, in breach of the company’s dress code policy. The ECJ concluded that the case did not amount to direct discrimination because of religion as the ban affected all employees equally (employer’s policy of neutrality). The ECJ did stipulate that any indirect religious discrimination consideration would need to be determined by the national courts. In terms of the latter case, the ECJ concluded that this had been discriminatory as the reason for banning was in response to a customer complaint and did not amount to a legitimate reason.
Considerations for employers: This topic again has implications from a discrimination perspective. Most employers will choose to have a dress code policy in place, from businesses that require employees to wear formal attire to those that have a casual wear stance. It is very clear that such a policy is very helpful for employees as guidance and to understand the parameters in place. Employers are advised to review their existing dress code policies/statements and sense check against the protected characteristics outlined in the Equality Act 2010 (age, disability, gender reassignment, religion or belief, sex or sexual orientation). This is particularly effective where there has been no review for a significant period of time.
What’s next in 2018
Both the highly publicised Uber case (Aslam and others v Uber BV and others) and Pimlico Plumbers Ltd and another v Smith are being appealed. Uber’s appeal will be heard by the Court of Appeal, whilst Pimlico Plumbers have been granted permission to take the Case to the Supreme Court. The outcome of these cases are fundamental to the gig economy and the continued challenges of self-employed and employee/worker status.
Following the EAT hearing of Ali v Capita Customer Management Ltd in December 2017, a decision is yet to be announced. As the statutory introduction of SPL is in its infancy in relative terms, the EAT’s verdict is likely to be greatly anticipated by employers. At this stage, the questions around appropriate scheme enhancements remain unresolved and are likely to face more scrutiny in the coming months.
Finally, going slightly off-piste – one of the most highly anticipated legislative changes for 2018 is the introduction of General Data Protection Regulation (GDPR), the enhanced data protection regulations officially taking effect in May. Last year we provided an overview guidance document of the provisions and expectations in place to remain compliant. This year will see more definitive guidance from the Information Commissioner’s Office (ICO) around GDPR compliance which greatly supports policy modification requirements in the HR arena.
If your organisation or business is affected by any of the cases discussed in the article, then please get in touch with CBW’s HR Consultants for commercial and legislatively based advice and solutions.
CBW HR Consultants can provide bespoke and comprehensive advice across the full scope of people management responsibilities and the employee life cycle. For further information on any of the areas, please get in touch.