Employment Review: March 2017

This month we consider a number of notable cases concerning (i) the test for ‘worker’ status, (ii) the implications of merely asserting disability in a harassment claim, (iii) the latest holiday pay decision in British Gas v Lock, and (iv) a high profile ruling by the ECJ on the prohibition against wearing Islamic headscarves. We also provide a timely reminder of the new provisions of the Trade Union Act 2016 which came into force on 1 March 2017

Employment status:

plumber was a worker, not a self employed contractor

Comment

This case comes at a time of significant interest in worker status and the gig economy, following the recent employment tribunal decisions in Aslam v Uber BV and Dewhurst v Citysprint UK Ltd and in light of the ongoing Taylor review into modern working practices.

As with so many worker status decisions, the Court of Appeal's decision is fact sensitive. However, the case illustrates that courts will continue to critically examine the relationship to determine whether employers are attempting to sidestep the established principles of employment law.

Therefore, businesses categorising an individual in a particular way should carefully consider all aspects of the working relationship. The starting point in determining the status of an individual will be the written contractual agreement but day to day arrangements will also be deciding factors

Harassment related to disability: assertion of disability insufficient

Comment

This case illustrates the difficulty presented by the statutory definition of disability in the Equality Act 2010 in relation to alleged discrimination due to a perceived protected characteristic and also raises questions about an employer's knowledge both with regard to decision making employees and in relation to its position as principal when instructing agents.It also highlights that claimants should properly particularise their claims by identifying those of the employees who are alleged to have been involved in decision making. In this case, the decision to instruct surveillance agents was the decision of employer's director of legal services and the tribunal therefore needed to make findings about what she knew about the protected acts relied on and whether they were the reason she ordered the surveillance

Supreme Court refuses the British Gas holiday pay challenge

Comment

The Court of Appeal made it clear that its judgment applies to “results based” commission and it does not mean that all commission schemes have to be included.

Also, the decision only relates to the four weeks of annual leave in regulation 13 of the Working Time Regulations and not the extra 1.6 weeks under regulation 13A, or any additional contractual holiday entitlement and any claims brought on or after 1 July 2015 are limited to deductions where the relevant date of payment fell within two years before presentation of the claim.

Where workers are entitled to “results based” commission, the amount they receive for their holiday should be based on both their basic pay and any commission they earn. However ascertaining loss will not be as straightforward in cases where, for instance, the worker receives a single “results based” commission annually or where the scheme involves discretionary assessments based on a particular level of turnover, individual performance and/or team performance

Prohibition against wearing Islamic headscarves

Comment

The ECJ’s ruling clarifies what is and is not permitted in respect of dress codes and manifestations of religion and both cases will now be referred to their respective national courts to be decided.It also highlights the importance of dress codes and equality and diversity policies which are carefully considered so as not to fall foul of discrimination laws and thereby avoid potential liability and reputational damage. If in any doubt, employers should seek further legal guidance on this issue

Trade Union Act 2016Ballots: for a ballot to support industrial action, at least 50% of those entitled to vote must do so (section 2).Ballots in "important public services" (including health, education, transport, border security and fire sectors): for those in "important public services" at least 40% of those entitled to vote must vote ‘yes’ to action (section 3).

Information requirements in relation to voting papers (including a summary of the matter(s) in issue in the trade dispute, the type of action proposed and the period in which any action is expected to take place) and information provided to members on the result of a ballot (sections 5 and 6).

Notice requirements: two weeks’ notice to be given to employers of industrial action (increased from 7 days) although, an employer may still agree to accept 7 days notice (section 8).

Expiry of mandate for industrial action: a ballot in favour of industrial action will now remain valid for a period of 6 months from the date of the ballot or a longer period not exceeding 9 months if the union and employer agree (section 9).

Union supervision of picketing (section 10).