Summary: In our updated blog format, we outline the five key employment law developments over the last month. These include the publication of the guidelines on the gender pay gap reporting regulations and cases on mobility clauses, expired warnings and the enforceability of COT3 agreements. We also look at further developments on employment status in the "gig economy". Finally, we outline other points to be aware of this month.

Guidance on the Gender Pay Reporting Regulations published

Acas published its guidance; Managing gender pay reporting in the private and voluntary sectors, on 30 January.

Why this matters? The first snapshot date for GPGR is 5 April 2017. We have previously outlined that the Regulations themselves are not always clear. These guidelines are therefore vital for employers preparing to report for the first time. Our blog outlines the five key points to note on the new guidance.

Employer can take into account expired warnings when deciding to dismiss for misconduct short of gross misconduct

An employer was entitled to dismiss an employee for conduct falling short of gross misconduct, taking into account the employee’s previous disciplinary record (consisting of 17 expired warnings) and its expectation that misconduct would continue in the future.

Why this matters? This is a surprising decision since earlier authorities have suggested that an employer cannot rely on an expired warning to elevate an offence from one that would not have attracted dismissal to one that does and that expired warnings may only be taken into account where the present offence itself constitutes gross misconduct. In light of this conflict the decision may yet be appealed.

Stratford v Auto Trail VR Ltd

Employer could not rely on a mobility clause to dismiss fairly in a redundancy situation

An employer was not entitled to rely on a mobility clause to move employees to another site, rather than making them redundant when their place of work closed. The mobility clause was wide and uncertain. Further, the instruction to move was not reasonable given the significantly increased commuting time.

Why this matters? This case does not change the law and employers may still rely on mobility clauses rather than make employees redundant. However, it highlights the scrutiny that will be placed on the construction and drafting of mobility clauses and the manner in which they are operated in a redundancy situation. This case is considered further in our recent blog.

Kellogg Brown & Root (UK) Ltd v Fitton and Ewer

Tribunal could hear claim despite existence of COT3

A tribunal accepted it had jurisdiction to hear a claim despite the fact the parties had entered into a COT3 following earlier tribunal proceedings.

Why this matters? The COT3 was only effective to settle claims arising from the same factual matrix of the first claim. When a new claim was brought on new facts, the tribunal allowed it through. This highlights the need for COT3s and settlement agreements to identify precisely which claims are being settled and ensure the drafting reflects this.

Gig-economy - Cycle courier was a worker and not self-employed; Tax tribunal finds that drivers are workers and not self-employed

There are two further cases on the "gig-economy" this month:

  • an employment tribunal found that a cycle courier was a worker and that the documentation couriers were required to sign on starting, stating that they were self-employed, was a sham which did not reflect the true nature of the relationship.(Dewhurst v CitySprint UK Ltd)
  • the first tier tax tribunal found that drivers acting for a partnership providing haulage services were workers and not self-employed. It was the partnership which dictated the terms of the relationship with the drivers and there was no evidence that drivers were running their own businesses.(RS Dhillon and GP Dhillon Partnership v HMRC)

Why this matters? This is the latest in a line of recent cases to find that those working in the gig-economy (couriers, drivers etc.) are in fact workers and therefore entitled to worker rights such as minimum wage and holiday pay. Employers in similar industries should be aware that their arrangements may also be subject to challenge.

Roundup of other developments:

Employment Tribunal fees: The Government has finally published its review of Employment Tribunal fees. It will maintain the current regime, but proposes making some minor changes, including modestly expanding access to the fee remissions scheme for those on low incomes.

Disability discrimination: The EAT has overturned a tribunal’s decision that an employee with type 2 diabetes was not disabled. The judge had not properly considered whether type 2 diabetes was a ‘progressive condition’ and had not properly examined future prognosis. The case was remitted for fresh hearing.Taylor v Ladbrokes Betting and Gaming Ltd

Age discrimination: The tribunal has found that transitional provisions attached to reforms of the judicial pension scheme which protected those closest to retirement were age discriminatory and could not be objectively justified.The case highlights the need to properly identify the legitimate aim which is being pursued, to ensure that the treatment is a proportionate means of achieving that aim and, importantly, to be able to demonstrate this in the Tribunal. McCloud v Lord Chancellor ( ET/2201483/2015)

ECHR report on law on religion and belief: The ECHR has published a report on the law on religion and belief, as part of its Equality Act duty to monitor the effectiveness of equality legislation.

Tribunal procedure: In a modern slavery case, the EAT found that a tribunal had failed to consider the claimant’s extremely limited means when imposing a deposit of £75 per allegation. The EAT imposed fresh deposit orders in the nominal sum of £1 per allegation. Hedman v Ishmail and Al-Megraby

The Trade Union Act 2016:

  1. The government has published non-statutory guidance defining what constitutes an ‘important public service’ in health, fire, transport, education and border security.The guidance is intended to supplement the draft regulations defining ‘important public services’.
  2. The Welsh National Assembly has published the Trade Union (Wales) Bill to exclude key elements of the Trade Union Act from applying to devolved Welsh authorities.If the bill becomes law, key provisions of the Act will not apply to devolved public authorities in Wales.