While preparations for the introduction of the GDPR were well underway, the first big story of the year is one that hit the headlines again in October 2018 (see below) - that was the news that in a landmark decision (and the first case of its kind in the 20 years since the implementation of the Data Protection Act 1998) the High Court found Morrisons Supermarkets was vicariously liable in damages to over 5,000 employees for the wrongful disclosure, by a rogue employee, of personal data entrusted to him.
In the gig economy world the Work and Pensions Committee and the BEIS Committee published a joint report - A framework for modern employment - containing 11 recommendations, similar to that included in the Taylor Review. Meanwhile, Mr Taylor himself was been reported as saying flexibility and engagement are more important than new laws on employment status.
Also in January, the BBC started the year on a note similar to that which had plagued them throughout 2017 - the difference in pay between male and female employees. The resignation of Carrie Gracie, the BBC's China editor, was attributed to unequal pay but the issue threw the gender pay gap issue at the BBC clearly back into the spot light.
Although the concept of discrimination by perception has been around for a few years, this point has rarely been litigated and February saw a judgement from the EAT upholding a claim by a police constable on the basis of Norfolk Constabulary perceiving her hearing loss to be a disability which they thought would deteriorate and require reasonable adjustments in the future that they would not be able to accommodate.
The Government also published its response to the wide ranging Taylor Review of Modern Working Practices. While accepting many of the recommendations made in the review, the response didn't provide many answers, instead being used to open consultations on many of the proposals before a final strategy was announced……a strategy that is still awaited as the end of the year approaches.
The use of technology hit the headlines in February with both warnings that 230,000 jobs could be put at risk over the next decade due to increased use of robots, and Amazon's proposal to promote the use of wristbands that can precisely track where employees are placing their hands and use vibrations to nudge them in a different direction. The theory is that it would result in each worker fulfilling more orders - at least until their roles are replaced by robots….
March saw a case relating to the British long hours working culture. The Court of Appeal considered whether an expectation to work long hours could equate to a provision, criterion or practice for the purposes of a disability discrimination claim - and concluded that it could. The case is significant as the court found that there was no need for an element of compulsion by the employer to meet the test of being a requirement. The case will be helpful to disabled employees dealing with demanding work cultures.
The country's most famous "unretiree" finally called it a day in March. Joe Bartley got a job as a waiter at the age of 91 after describing himself as "dying of boredom". And although age and a major operation have put paid to his working life, Joe continues to get out and about and reportedly visits his ex employer's restaurant regularly for a coffee or a pint.
April is usually the busiest employment law month of the year with many legislative changes taking effect but 2018 additionally saw the deadline for gender pay gap reporting passing and new rules on the taxation of termination payments taking effect. Despite a last minute rush from businesses, 1,557 organisations apparently failed to lodge their gender pay gap reports on time, although by mid August this had been rectified. While there may be debate as to whether the reports told us anything we didn't already know they certainly put pay inequality into the spotlight and laid the foundations for the ethnicity pay gap reporting that seems likely to follow.
Meanwhile film-making graduate Anastasia Glover came up with a novel way of applying for jobs following a fruitless search since graduating. Her grime style rap "Gimme a job innit" job application garnered multiple hits on LinkedIn with PR agencies getting in touch to help her land a job.
GDPR was the big story in May with what seemed like a never ending flow of emails coming into everyone's inbox seeking permission to continue to contact us.
With the focus very much on data protection a breach by members of staff at Ipswich Hospital made the headlines. Two members of staff were disciplined after accessing Ed Sheeran's personal details with no legitimate reason to do so, with one receiving a written warning and the other being sacked.
May also saw not only mental health awareness week (14 - 18 May) but also publication of the 18th annual CIPD / Simply Health Health and Well-being at Work survey which reported that as technology started to carry the burden of "manual" labour the greatest risks to employee well-being are now psychological. Mental health and well workplaces continued to be a focus throughout 2018 with stress, presenteeism (turning up ill) and leaveism (working while on holiday) being identified as increasingly problematic.
Judgements on disability discrimination and the Supreme Court's judgement in the Pimlico Plumbers case were the highlights of June. It came as little surprise that the Supreme Court upheld the findings of the lower courts and tribunals, confirming that the claimant, Mr Smith, was indeed a worker and not self employed.
Meanwhile in City of York Council v Grosset the Court of Appeal concluded that an employer could be liable for discrimination arising from disability even when it was unaware that the disability caused the misconduct. Mr Grosset, a teacher, had been dismissed for showing an 18 rated film to his class of 15 year olds but the reason for doing so was stress brought on by his disability - something the employer was not aware of at the time of the dismissal.
The beginning of summer brought with it some ill thought out comments beginning with reports that Akbar Al Baker, chief executive of Qatar Airways stated the company had to be led by a man "because it is a very challenging position". The top ten worst excuses given for not appointing women to boards was also published. These little gems ranged from "we have one woman already" and "all the good women have already been snapped up" to the immensely patronising "most women don’t want the hassle or pressure of sitting on a board". Is it 2018 or 1918??
The gig economy hit the headlines again in the summer. Deliveroo settled claims made by 50 couriers relating to their rights as workers but as it was on a without admission of liability basis
the company said the settlement had no impact on Deliveroo riders or their business model. Hermes were on the losing end of a preliminary hearing dealing with employment status and art educators dismissed by the National Galleries attempted the more difficult task of persuading a tribunal that they were employees.
July also brought the release of the Office for National Statistics figures showing workplace absence rates were continuing to decrease year on year, but we looked behind the figures to assess what this really meant for the health of the workforce.
And just in time for the summer, there was many a chuckle, certainly in Scotland, after the New York Times highlighted the "Jobbymoon" - the practice of taking a holiday while between jobs. Similar to a honeymoon or a babymoon, and apparently good for you irrespective of how it might sound!
A quiet month on the employment law front but, as the end of holiday season was reached, funny out of office replies hit the headlines. Everything from parodying Rick Astley hit Never Gonna Give You Up to the brutal honesty of stating you are off to play with your kids while they are still prepared to be seen with you gets a mention. But perhaps companies like Daimler have got it right, setting up a service for workers going on holiday which just automatically deleted new emails.
September saw the annual employment tribunal statistics being published (for 1 April 2017 to 31 March 2018). Although nearly a third of the 12 month period which the statistics related to had still been covered by the requirement to pay tribunal fees, the number of applications surged from 88,461 in 2016/17 to 109,685 for 2017/2018. Despite that, there were fewer awards of compensation made this year and the highest award made in every type of reported claim was lower than the previous year.
Meanwhile, the Information Commissioner's Office confirmed that the GDPR had, as expected, resulted in an increase in data breach complaints. The Information Commissioner's Office received 6,281 complaints between 25 May (when GDPR came into force) and 3 July 2018, a 160% increase. The media coverage when GDPR came into force is likely to have fuelled the number of complaints made but may also be explained by the fact that, according to research commissioned by the TUC, 56% of workers believe they are being monitored at work. The GDPR places significant limits on how employers can monitor employees but a significant number of workers remain suspicious that some form of covert monitoring is going on.
The judgement of the Supreme Court in the case of Lee v Ashers Baking Company Ltd & Others, dubbed the "gay cake case", was handed down in October. Overturning the lower Irish courts the Supreme Court held that the refusal to write a message supporting gay marriage on a cake requested by a homosexual customer was not discriminatory on the grounds of sexual orientation or religion or belief. The objection the baker had was to the message, not the messenger and a heterosexual customer would have been treated in exactly the same way.
October also saw the data protection case that hit the headlines in January come before the Court of Appeal. The Court upheld the decision of the High Court that Morrisons Supermarkets was vicariously liable in damages to over 5,000 employees.
One of the favourite topics of 2018 has been the concern that robots could replace workers. However, a report from the World Economic Forum suggested that new technologies have the capacity to create almost double the number of jobs it puts at risk. Of course it all depends on the type of work you do and may not allay the concerns of those at risk of being replaced by ethical robot lawyers ………
The 4 day week repeatedly hit the headlines during 2018 - and not the part-time working 4 day week, but rather the still get paid for 5 full days while only working 4 days kind of arrangement. Examples of companies decreasing working hours but increasing productivity could be found from New Zealand to the UK and the TUC called for government support to make it happen. By the time November came John McDonnell, the Labour shadow chancellor, was reportedly in discussions with distinguished economist Lord Skidelsky about an independent inquiry into cutting the working week to four days. But is it all too good to be true?
As the end of the year came closer, the Court of Appeal judgement in Timis & Another v Osipov & Anor was handed down and will serve to strengthen the rights of whistleblowers. The Court, held that it was open to an employee to bring a detriment claim against a co-worker for subjecting him to detriments (including the instruction given by one of the employees to the other employee which culminated in the dismissal of Mr Osipov) and to claim vicarious liability for that act against the employer. Additionally, where an unfair dismissal claim is brought against the employer the co-worker can be liable for the losses suffered in consequence of the dismissal on the basis that those losses flowed from the pre-dismissal detriments that the co-workers were liable for. In this case, that meant an award of over £2million.
The English Court of Appeal handed down a well timed judgement in the form of Bellman v Northampton Recruitment Ltd reminding employers of the risks when things get out of hand at (or as in this case after) a Christmas party. On this occasion it was the boss who was at fault, punching an employee who questioned his authority during a 3am post party drinking session. The Court found that there was sufficient connection between the post party drinks and the workplace and, as such, the company was vicariously liable for the assault.
As the year comes to an end we can start to wonder what issues might make it big next year. For more on that make sure you take a look at next month's enews where we will look at what to expect in employment law in 2019.