What to expect Impact on employers
The Gov’t plans to start publishing ET judgments in an online searchable database, accessible to the public. Expect the media to take a keen interest in the contents of the new database: cases that might otherwise have gone unnoticed could attract publicity.
The Supreme Court is due to decide whether a bus company discriminated when a wheelchair user was unable to travel because the wheelchair space was occupied by another passenger: Paulley v First Group Plc. The case will be watched closely in the transport sector for guidance on how to balance the competing interests of customers.
Gov’t consultation is expected on extending shared parental leave and pay to working grandparents and possibly other carers and simplifying processes related to shared parental leave. Employers who enhance shared parental pay will need to consider carefully whether they will extend that approach to non-parents, although the law is not expected to change until 2018.
The CJEU will rule on whether prohibiting Muslim women from wearing an Islamic headscarf at work is religious discrimination under EU law: Bougnaoui v Micropole Univers and Achbita v G4S Secure Solutions. The ruling should cast more light on the extent to which employers can operate ‘neutrality’ policies that might interfere with employees’ religious practices.
New English (or Welsh) fluency requirements are expected to apply to public sector employees in customer-facing roles from this autumn. Employers will need to guard against discrimination when applying the language rules and should follow the Code of Practice.
In November the Supreme Court will hear two cases on indirect discrimination: Essop v Home Office and Naeem v Secretary of State for Justice. The cases look at whether it’s necessary to examine the cause of group disadvantage in indirect discrimination cases. A decision in favour of the claimants could strengthen employees’ ability to bring claims of indirect discrimination in some cases, particularly where it is unclear precisely why a particular group is disadvantaged by an employer’s practices.
In March 2017 The Supreme Court will hear an appeal against the CA decision that survivors’ benefits for same-sex civil partners (and, by extension, same-sex married partners) need not take account of service accrued before 5 December 2005 (when sexual orientation discrimination became unlawful). A case raising similar issues is pending in the CJEU. According to reports, the Gov’t has estimated that the cost to private and public sector pension schemes or equalising benefits could run to £3 billion.
The Gov’t has said it will consult on whether the Equality Act 2010 should be amended to explicitly cover caste discrimination. Employers may need to adapt internal policies in due course if the law is changed, although we would not expect that to happen before 2018.
The Supreme Court will give its ruling on Unison’s legal challenge against ET fees (to be heard in March 2017). Separately, the Gov’t is expected to announce the outcome of its review of fees. If the legal challenge succeeds or the Gov’t decides to reduce fees significantly, employers should expect claim numbers to rise. In any event, plans to abolish fees in Scotland, after control of the ET system is devolved, may result in more Scottish claims, some because of ‘forum shopping’.
The Gov’t aims to have new laws requiring employers to publish gender pay gap data in force by April 2017. Employers are likely to have until 4 April 2018 to publish their first set of statistics. Employers should prepare now, with pay audits and communication plans. Read our gender pay gap reporting briefing.
Thousands of female shop floor workers have brought equal pay claims against ASDA claiming same pay as male workers in distribution centres. The case could run on for years. Some other large supermarkets are also facing claims and other retailers could be at risk.

NB This update covers England, Wales and Scotland. It does not cover developments that apply only in Northern Ireland.


Gov't The Government

CJEU The Court of Appeal of the European Union

CA Court of Appeal

ET Employment Tribunal

EAT Employment Appeals Tribunal