In January we predicted that 2017 looked like it might be a quieter year for employment law. We would have to admit to not predicting the total withdrawal of employment tribunal fees coming (albeit we did think a change was likely) but one of the bigger issues of 2016 - the calculation of holiday pay - petered out leaving the gender pay gap and the gig economy to keep hitting the headlines……
The new year started with Brexit on everyone's mind - how was it going to happen, when was it going to happen and what impact would it have? There were reports that UK Government Ministers (including Michael Gove and John Whittingdale) had encouraged companies to outline regulations they want scrapped after Brexit - something that now seems a rather insignificant issue compared to the complexity, potential costs and political and economic upheaval that may be on the horizon. Meanwhile Sports Direct reported a 25% drop in profits off the back of bad publicity about their employment practices, French workers gained a "right to disconnect" and the Dorchester Hotel reportedly decided to face the issue of staffs' personal hygiene face on issuing a list of do's and don't's including not turning up to work with bad breath or oily skin or displaying excessive body hair. Happy new year!
By February some gig economy cases were starting to hint at the fact that the Uber case (which was decided in 2016) was not going to be a one off. Cycle courier Maggie Dewhurst won her well publicised case against City Sprint when a tribunal found her to be a worker not self employed and in RS Dhillon and GP Dhillon Partnership v HMRC the first tier tax tribunal held that drivers acting for a partnership providing haulage services to the construction industry were employees and not self employed. In a year that may at first glance appear employee/worker biased, a number of employer friendly cases began to appear including a decision that gross negligence can equate to gross misconduct and that an extended stress related absence is not conclusive of disability. In addition, a Government awareness campaign published in February highlighted some of the more bizarre excuses given by employers who failed to pay minimum wage. Reasons included the fact that a worker "only makes the teas and sweeps the floors" and that employees had to "prove their worth".
For animal loving employees, probably the best news of the year came in March with the birth of "paw-ternity leave" - staff getting paid leave when a puppy joins the family. Not a statutory right (yet!) but certainly a step in the right direction!
The arrival of the requirement to report on the Gender Pay Gap was preceded in March by ACAS issuing guidance on compliance and confirmation from the Employment Appeal Tribunal in the case of Stratford v Auto Trail VR Ltd that employers can take into account previous conduct even though the warning(s) issued for that conduct had expired.
The gig economy train of decisions started to build up steam with the Court of Appeal Judgement being issued in Pimlico Plumbers Ltd and Mullins v Smith with Pimlico's appeal against the decision of the EAT that Mr Smith was a worker being dismissed. This one will continue well into 2018 with a visit to the Supreme Court scheduled for later in the year, with the possibility of the Uber appeal from the EAT being heard at the same time.
April is always a busy month in employment law with a variety of new legislation coming into force including NLW, NMW and family friendly allowance rates changing, tribunal limits increasing and Gender Pay Gap reporting requirements taking effect. The question of how to calculate holiday pay started to draw to a close with the Supreme Court refusing permission to British Gas to appeal the Court of Appeal ruling that results based commission should be included in the calculation, giving a degree of finality to what had been a long running debate.
For those looking for a bit of bedtime reading the Employment Tribunal online database of decisions went live in April - no news on the hit rate but the volume of traffic on it doesn't appear to have broken the internet yet (but a very useful resource for those who need it!).
Also in April came the news that FTSE 100 company bosses get paid 386 times more than living wage workers with an average of £5.3 million annual pay packet. Perhaps the companies could learn from the reported mistakes made by Google who were struggling to keep hold of workers after paying them too much…….
The Gig economy continued to lead the employment law headlines with reports published by both the Work and Pensions Committee ("WPC") and the CIPD. While the WPC report stated that companies enjoy a level of freedom that results in a failure to protect workers from exploitation and poor working conditions, the CIPD report headlined that only 4% of working adults engaged in the gig economy and only 14% of those did so because they couldn't find alternative employment.
The Court of Appeal produced another decision which will assist organisations in managing difficult employees. In Adeshina v St Georges University Hospitals NHS Foundation Trust it was decided that an employee's bad attitude towards workplace change can amount to gross misconduct while the EAT issued two judgements showing how strictly time limits for lodging claims after Early Conciliation will be enforced.
With a snap election taking place in early June media focus was very much on this issue and the uncertainty that followed. However, in the employment law world another step was taken towards certainty for employers in terms of their liability for holiday pay calculations with the EAT affirming the earlier 2016 judgement that a series of deductions (for the purposes of unlawful deductions claims) would be broken by a 3 month gap in payments. Given many people would have more than 3 months between periods of holiday (or at least between periods of the 20 day Working Time Directive entitlement), this would rule out a significant number of long running claims. Bad news however for anyone who has failed to comply with auto-enrolment requirements with reports that a company was ordered to pay £40,000 for not meeting their responsibilities.
Also in the news in June was the results of a survey of over 1000 workers that showed that office aesthetics do matter with 41% of job seekers being put off by out of date décor and 38% by lack of natural lighting. While some offices might have struggled to meet job seekers' requirements, in the Oval office the phrase of the summer was "You're fired". As James Comey and numerous others were let go by President Trump a number of media outlets provided top tips for getting a sacking right.
In the aftermath of the election we had a look at what to expect in employment law over the next parliament but while many of us were off trying to get some sunshine some of the biggest stories of the year came to fruition. First of all after much speculation the Independent Review of Employment Practices in the Modern Economy (the Taylor Review) was published with a long list of recommendations including renaming workers as "dependant contractors", giving zero hours workers the right to request a fixed hours contract after 12 months and giving agency workers the right to request direct contracts with a hirer once they have been in place for 12 months.
And while we argued in June that employment tribunal statistics continued to make a case for reducing or removing tribunal fees the Supreme Court declared the fee regime unlawful and indirectly discriminatory in July. The fee regime was immediately withdrawn and a reimbursement scheme set up for those who had paid fees in the past.
Finally in July, a Glaswegian granny showed us all how to get the point across in a letter of resignation.
The BBC hit the headlines in August when they published the wages of the stars who earn more than £150,000 per year. The figures, published in the BBC's annual report, showed the highest paid male earned between £2.2m and £2.25m with the highest paid female earning only between £450,000 and £500,000. Director General Tony Hall admitted that the BBC had "more to do" on gender and diversity.
Meanwhile the Court of Appeal found in Chesterton Global Limited v Nurmohamed that a disclosure made in the private interests of a worker did meet the public interest requirement for a whistleblowing claim. The EAT however produced an employer friendly judgement in the case of JP Morgan Securities plc v Ktorza when holding that a conduct dismissal does not require culpable behaviour on the part of the employee.
In September, the EAT judgement in Dudley Metropolitan Borough Council v Mr G Willetts and Others that voluntary overtime should be included in holiday pay calculations was a further step towards clarity for employers when dealing with holiday pay calculations.
The rise of the machines was a continuing theme throughout 2017, with the news in September that window cleaners may be one of the first to lose jobs to robots with state of the art skyscrapers being designed with robotic maintenance. Something that will not cause robots any problems also hit the headlines with a report from Aberdeen University that there was a link between high heeled shoes at work and an increased risk of bunions, pain and injury.
A surprise U-turn took place in October on whether it was acceptable for employers to "snoop" on their employees in the workplace. In a rare appeal from the European Court of Human Rights (ECHR) to the Grand Chamber of the ECHR in Barbulescu v Romania, a decision issued in 2016 that appeared to allow employers to snoop was reversed giving employees an expectation of privacy in relation to private communications using the employer's computer systems. That said, as long as certain steps are taken by employers they should still be in a position to lawfully monitor employee communications.
The gig economy was once again at the forefront of employment law. Pimlico Plumbers, the "employer" in one of the highest profile gig economy cases was granted permission by the Supreme Court to appeal the decision of the Court of Appeal in the employment status claim brought against them by Gary Smith. Mr Smith had successfully argued that he was a worker and not, as the plumbing firm maintained, a self employed contractor. This guarantees the gig economy will continue to be big news well into 2018. Addison Lee, who had been accused earlier in the year in an employment status claim of attempting to "frighten off" a courier from taking legal action against them were once again unsuccessful in the tribunal with three of their couriers successfully claiming they were workers.
Hot on the heels of stealing jobs from window cleaners, October saw reports of computers/robots taking the jobs of lorry drivers with self driving lorries being trialled on UK roads - be extra careful if you spot 2 or 3 lorries driving in formation on roads near you. And if that sounds futuristic how about microchipping workers? While there is no GPS function as yet (Big Brother….) a US base tech company have microchipped 50 of their 80 staff.
November saw judgements issued in two gig economy cases. Firstly, Uber's appeal to the EAT against the decision that their drivers were workers was dismissed - an appeal is expected and it may well leapfrog the Court of Appeal and go straight to the Supreme Court to be heard at the same time as the Pimlico Plumbers appeal. The second judgement was from the Central Arbitration Committee and related to Deliveroo riders. The Independent Workers Union of Great Britain had sought trade union recognition on the basis that the Deliveroo riders were workers (as some had been found to be in the employment tribunal). However, the CAC took a different view finding the riders were not workers due in part to the unfettered right to substitute. A rare fail for gig economy worker rights.
Six months in to the Gender Pay Gap reporting we found that only 148 of an estimated 9000 businesses had complied with the requirements. Although at an early stage (in terms of numbers of respondents) early figures tended to show women being more highly represented in the lower earnings quartile with men being more highly represented in the higher quartile. While there seem to be more parity in terms of the number of men and women who received bonuses, a closer look at the figures showed men often received considerably higher bonuses than women.
Finally, with one company in the UK providing paw-ternity leave earlier in the year, an Italian university librarian managed to take enforcement of rights to canine care a step further by winning a legal battle to take paid leave to look after her poorly dog. The need to take the time off was seen as falling within the employee's rights to leave for "serious or personal reasons".
December saw the ECJ's Judgement in King v Sash Window Workshops Ltd and another coming as a blow to employers at risk of having wrongly classified workers as self employed. The decision means that workers who have not taken holidays because (having been wrongly classified as self employed) they would not have been paid for them can make holiday pay claims extending back to the beginning of their engagement with the organisation that they work for. This could result in huge liabilities for businesses, particularly those in the gig economy presently dealing with employment status claims.
Looking back over 2017 it would be easy to focus on some of the negative higher profile issues such as the numerous allegations of sexual harassment that have appeared from many workplaces, the gender pay gap problems and the alleged exploitation of gig economy "workers". Hopefully, our annual review has hopefully shown that it hasn't all been bad news and next month we will look at what to expect for employment law in 2018.