Welcome to the first in our new series of monthly briefings for HR teams and in-house employment counsel – bringing you this month’s employment law highlights in an easy-to-read package.
In the courts
Employment status continues to dominate the headlines. Readers will be familiar with the long-running dispute over the status of Uber drivers, the latest installment of which saw the Court of Appeal come to a split decision. The majority agreed with the earlier findings to the effect that, notwithstanding the contractual documentation that purported to describe drivers as independent contractors, they were in fact workers (and therefore entitled to protection under the Working Time Regulations and the National Minimum Wage Act). Interestingly, one judge reached a different conclusion, holding that the documentation should be accorded priority. The case is set to go to the Supreme Court, where the dissent in the Court of Appeal may give Uber greater confidence.
In other employment status news, the Employment Appeal Tribunal has ruled that Addison Lee drivers were workers, again notwithstanding the lengthy contractual documents which, as with Uber, described them as independent contractors. That stands in contrast to the decision of the High Court in relation to Deliveroo couriers - the key difference being that the Court accepted that couriers were free to delegate their deliveries to anyone they chose. That right of substitution is typically inconsistent with a requirement to perform services personally, which is a key aspect of both employee and worker status.
The other major development this month is the Court of Appeal's decision that female supermarket staff at Asda could compare themselves with their better paid colleagues at Asda's distribution centres, who are predominantly male. The case is the first major attempt to bring a mass equal pay claim in the private sector based on both roles amounting to work of equal value, so is being watched very closely. Asda's defence will now have to be focused on showing there was a material factor unconnected with sex underpinning the variance in pay.
The Employment Appeal Tribunal has issued an interesting judgment on the types of complaint that qualify for whistleblowing protection. The legislation requires a three-part test: (i) you must disclose information; (ii) you have to believe that information shows a breach or failure of some sort (a defined list is set out in the statute); and (iii) you have to believe the disclosure is in the public interest. In this case, the focus was on whether an individual's complaint that colleagues were spreading rumours about him qualified for protection. The EAT ruled that parts (i) and (ii) were met, but part (iii) was not. The decision on part (ii) is the most important part of the reasoning, as it includes defamation and, by extension, other torts such as negligence, in the kinds legal obligation about which disclosures can legitimately be made.
In the news
The Government has issued its proposals for employment law reform in the wake of the review of modern working practices conducted by Matthew Taylor. The proposals, called the Good Work Plan, contain some interesting ideas which are designed to help businesses correctly categorise their people, help workers claim the proper holiday pay due to them, and help those with zero-hours contracts get greater certainty. As our summary of the proposals notes, businesses will need to scrutinise the legislation as it is published in order to judge whether the Government's plans are likely to achieve those aims.
Aside from employment status and the gig economy, the other issue that has risen dramatically in prominence is sexual harassment at work. Readers will be familiar with the debate over whether it is legitimate to include confidentiality provisions (or NDAs) in settlement agreements. The Financial Conduct Authority, the Law Society and the Solicitors Regulation Authority have all issued guidance on the point, with the result that wholesale "gagging" provisions are now very unlikely to be acceptable. It remains possible to include sensible, measured and well-drafted provisions, which balance the individual's right to speak freely about serious misconduct that may have been committed with the employer's desire for a clean break settlement.
The Government has launched a consultation on extending the current redundancy protection for women on maternity leave. At present, women who are at risk of redundancy during their maternity leave have a preferential right to any suitable vacancies. Parliament's Women and Equalities Select Committee recommended some time ago that this protection should run from the date pregnancy was notified to the employer until six months after the woman had returned from maternity leave. The Government has accepted that recommendation in this consultation. They have also asked for views on whether other forms of family-friendly leave, particularly adoption leave and shared parental leave, ought to benefit from similar levels of protection.
Businesses are continuing to grapple with the enhancement of data protection rights enshrined in the EU General Data Protection Regulation (the GDPR). Two developments are worthy of note. The first involves the parent company of Cambridge Analytica, which simply refused to deal with a data subject access request. That refusal resulted in a £15,000 fine, a reminder of the dangers of ignoring the new regime. The second involves Google, which has been hit with a huge €50m fine by the French data protection regulator for failing to ensure its privacy notices were sufficiently transparent (they were spread over several pages) or gave users sufficient control.
The existing gender pay reporting regime applies only to larger businesses with 250 employees or more. There have been moves to reduce this threshold to 50 employees, a change which would substantially increase the number of companies within the mandatory reporting mechanism. The Government has, however, confirmed that it has no plans to amend the existing framework. Other possible changes that have been dismissed are including LLP members in the report, moving from quartiles to deciles when assessing pay throughout an organisation, making an action plan a compulsory part of the report, and specifying fines for non-compliance.
Large employers within the reporting mechanism should remember that the second year of reports must be submitted by 4 April 2019.