Employment Review - February 2018

In this month’s review we look ahead to what developments to expect in Employment Law in 2018 and set out some key dates for the diary. We also consider a number of notable cases concerning covert surveillance in the workplace, rest breaks, the effective date of termination and perceived disability discrimination, as well as reviewing statistics published 6 months after the landmark Supreme Court ruling which brought an end to employment tribunal fees.

We also kick off our Brexit Update service - do sign up for our free bulletins to keep you on track when it comes to employing non UK nationals in the coming period.In this edition we consider:

  • How to keep abreast of Brexit
  • What to expect in employment law in 2018
  • Changes in National Minimum and the National Living Wage
  • Covert surveillance and privacy in the workplace
  • Compensatory rest break
  • Effective date of termination
  • Perceived disability discrimination
  • Ministry of Justice and ACAS statistics published

Brexit update

Our first update in this series, to keep you in touch with developments in employment of EU nationals in the lead up to Brexit, is a video briefing. This covers 4 key points from the agreement on EU Citizens Rights, announced in December. The agreement gave clarity that both employers and employees were waiting for about the rights of EU workers to remain in the UK. Watch our short explanatory video here.

If you would like to receive our fortnightly Brexit updates please sign up here.

What to expect in Employment Law in 2018

Gender pay gap reporting

The gender pay reporting requirements apply to employers with 250 or more employees. The first reports for large private and voluntary sector employers are due by 4 April 2018.Data ProtectionThe General Data Protection Regulation (GDPR) will require employers to comply with new rules governing the processing of personal data, including those relating to consent, transparency and access rights from 25 May 2018.

As previously reported, employers should have clear policies to ensure both the employer and employees understand the obligations placed on them by the GDPR. For further information please find our update here The gig economy The issue of employment status remains an uncertain area of law. The Taylor Review on Working Practices makes a number of recommendations including replacing the existing worker status with a new status of “dependant contractor”. The Government’s response is currently awaited.

In February, the issue of employment status will also be examined further by the Supreme Court in Pimlico Plumbers Ltd v Smith and by the Employment Tribunal in Boxer v Excel Group Services Ltd.

We have previously covered a number of cases relating to worker status, including, most recently, the latest in the Uber case which will be heard at the Court of Appeal this year – for more on this see our update from December.And, whilst not changing the legal position, it was notable that the Central Arbitration Committee, on receipt of an application for trade union recognition made by the Independent Workers’ Union of Great Britain, decided that Deliveroo’s drivers are self employed. See our previous article

National Minimum Wage and the National Living Wage

The national living wage (for workers aged 25 and over) will rise from £7.50 to £7.83 on 1 April 2018.The national minimum wage for workers aged at least 21 but under 25 will rise from £7.05 to £7.38 per hour. The rate for workers who are aged at least 18 but under 21 will rise from £5.60 to £5.90 per hour, the rate for workers aged 16 or 17 will rise from £4.05 to £4.20 per hour, and the apprentice rate will increase from £3.50 to £3.70 per hour.

Statutory payments

The Government plans to increase weekly payments for statutory sick, maternity, paternity, shared parental and adoption pay from April 2018 to the following amounts:

  • Statutory Sick Pay - £92.05
  • Statutory Maternity Pay - £145.18
  • Statutory Paternity Pay - £145.18
  • Statutory Shared Parental Pay - £145.18
  • Statutory Adoption Pay - £145.18

Covert surveillance and privacy in the workplace

In Lopez Ribalda & Ors v Spain, the European Court of Human Rights (ECtHR) held that the use of covert surveillance in the workplace breached the employees’ Article 8 privacy rights.

A supermarket installed surveillance cameras to address suspected theft. The employees were only told about the visible cameras, not others which had been placed covertly without their knowledge or consent. The footage confirmed the employer’s suspicions and showed the employees were stealing stock. Accordingly several employees were dismissed with the employer relying on the covert footage. The employees alleged breach of the Article 8 right to privacy and data protection rights.

The Spanish courts held that the measure was justified, appropriate to the legitimate aim pursued, necessary and proportionate. No other equally effective means of protecting the employer's rights would have interfered less.

However, the ECtHR upheld the Article 8 claim finding that the domestic courts had failed to strike a fair balance between the rights involved. The ECtHR observed that covert video surveillance of an employee in their workplace is a considerable intrusion into their private life since an employee is contractually obliged to report for work and cannot avoid being filmed.

The case highlights that employers should maintain a policy that covert video surveillance will only be carried out in exceptional circumstances where the employer reasonably believes that there is no less intrusive way of resolving the issue.Indeed guidance published by the Information Commissioner's Office confirms that it will be rare for covert monitoring of employees to be justified and that it should only be done in exceptional circumstances, for example as part of a specific investigation into suspected criminal activity.

It is therefore essential that employers make a considered assessment of whether openness would be likely to prejudice the prevention or detection of crime or equivalent malpractice etc. If such prejudice is likely and where covert monitoring is undertaken, it should be for the shortest possible period and affect as few individuals as possible.

Compensatory rest break

In Crawford v Network Rail Infrastructure Ltd the Employment Appeal Tribunal (EAT) considered whether compensatory rest has to be taken as one uninterrupted break or whether a series of short breaks can be combined to amount to the requisite rest period.

Under the Working Time Regulations 1998 (WTR), if an employee works for longer than 6 hours they are entitled to a 20 minute rest break with the exception of a number of “special cases” including those working in rail transport, who are entitled to an equivalent period of compensatory rest.

In the case, Mr Crawford worked eight hour shifts as a railway signalman in a single manned box. He was required to continuously monitor his post and could be called upon at any time to carry out his duties. The requirements of his job meant that Mr Crawford was unable to take a continuous rest break of 20 minutes at any time during a shift. He was permitted to take short breaks which together amounted to in excess of 20 minutes over the course of a shift. However, he was always on call during these breaks.

Mr Crawford claimed that this arrangement of being entitled to take a series of short breaks taken over the course of a shift did not comply with the WTR. He claimed that he was entitled either to a 20 minute rest break or compensatory rest. An Employment Tribunal rejected Mr Crawford's claim deciding that Network Rail’s system was compliant.

However the EAT allowed the appeal, finding that adequate compensatory rest had not been provided. The EAT relied on the case of Hughes v The Corps of Commissionaires Management Ltd, where the Court of Appeal held that there should be a proper uninterrupted break during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest. Accordingly, as there was no opportunity for Mr Crawford's to take a single continuous break from work of 20 minutes, Network Rail were in breach of their obligations under the WTR.

This case highlights that while there are differences between a rest break and compensatory rest under the WTR (in that a worker can be on call during compensatory rest but not during a rest break), the crucial element to both is that the worker must have a single uninterrupted period of at least 20 minutes' rest.

Effective Date of Termination

In Cosmeceuticals Ltd v Parkin the EAT held that where there is a summary dismissal (termination effective immediately) and notice is subsequently given, the effective date of termination (EDT) does not change to the end of the notice period.Ms Parkin was employed as a managing director and was permitted to take a paid sabbatical. The employer had concerns about her performance and on Ms Parkin’s return from sabbatical on 1 September 2015, the Chairman informed her that she could not return to the job. Three days later Ms Parkin was placed on garden leave and on 29 September the Chairman wrote to her to give notice of termination ending on 23 October 2015.Ms Parkin brought a claim of unfair dismissal. The Employment Tribunal found that on 1 September 2015 Ms Parkin was told her employment had ended and that constituted communication of the dismissal. However the Tribunal held the EDT fell at the end of the subsequently given notice period (i.e. 23 October) and therefore Ms Parkin’s claim of unfair dismissal was made in time.The EAT allowed the employer’s appeal. The EAT confirmed that the EDT is a statutory construct under which the date of communication to the employee of summary dismissal is the EDT even if the employer should have given notice but failed to do so. There had been an effective dismissal without notice on 1 September and the employer only subsequently sought to put Ms Parkin on garden leave and give her notice. The EDT was therefore 1 September and that was the relevant date for determination of whether the claim was presented in time.

The case serves as an important reminder that the language used by an employer is crucial when communicating with employees. Accordingly, employers should be mindful of using the correct wording in all written correspondence and discussions relating to dismissal to avoid any uncertainty. Employers should also ensure they have clear and accurate termination and notice clauses within their contracts of employment.

Perceived disability discrimination

In Chief Constable of Norfolk v Coffey, the EAT considered whether a tribunal had been entitled to find that an employer had directly discriminated against an employee because of a perceived disability.

Mrs Coffey, a police constable, suffered from some hearing loss which placed her just outside national standards for the police. However, Mrs Coffey passed a practical functionality test which enabled her to work as a constable without adjustments.

When Mrs Coffey applied to transfer to Norfolk, her application was rejected by the Acting Chief Inspector (ACI) on the grounds that she did not meet the national standards on hearing. The Constabulary did not arrange a practical functionality test for Mrs Coffey.

Mrs Coffey issued proceedings in the Employment Tribunal claiming that the ACI perceived her as having a disability and that the decision to reject her application was direct disability discrimination. The ACI argued Mrs Coffey did not meet the statutory definition of disability under the Equality Act 2010 (EA 2010) and that the reason for rejecting her application was in fact due to cost and resourcing pressures, meaning that appointing someone who may not be fully operational could not be justified.

The Tribunal upheld Mrs Coffey’s claims, concluding that the ACI did perceive Mrs Coffey as having a disability for which the Constabulary may have to make immediate or future adjustments.

The EAT rejected the Constabulary’s appeal. The EAT found that the Tribunal had been entitled to hold that the decision amounted to direct discrimination; the ACI had perceived that Mrs Coffey’s condition could progress to the extent that she would have to be placed on restricted duties. The ACI therefore perceived that she had a disability in the sense of a progressive condition.

Interestingly, this is the first case to address perceived disability discrimination under the EA 2010 and it serves as a useful reminder that claims are permitted where the claimant does not have a protected characteristic but the alleged discriminator perceives them as having a protected characteristic.

However, the case also illustrates that such claims could face difficulties in the context of disability discrimination as it requires an analysis of whether the employer perceived the person to have an impairment with the features which are set out in the EA 2010.

Ministry of Justice and ACAS statistics published

The Supreme Court’s decision in R (on the application of UNISON) v Lord Chancellor which led to the abolition of the fees regime for employment tribunals was handed down 6 months ago now.The ripple effects of the ruling are just beginning to emerge. Various sources confirm that the number of claims is now on the rise, the most pertinent being the official statistics produced by the Ministry of Justice every quarter. In December last year the MoJ published the employment tribunal quarterly statistics for July to September 2017, which revealed that since the same period in 2016, the number of claims lodged by a single applicant have increased by 64%, which is the highest for four years.

ACAS statistics reveal that since the Supreme Court decision there has been a gradual increase of ACAS notifications, reaching approximately 2,200 notifications per week by the end of September. ACAS also confirms that since week commencing 28th August there has been an increase in net ET1 receipts (+59%) and in Early Conciliation notifications (+23%) compared with the same period in 2016.

What does this mean for employers?

While these figures are important, they are still significantly lower than pre-fees levels. That said the statistics outlined above do broadly show that the abolishment of fees is leading to a rise in claims.

It is therefore important for employers to embrace the concept of ‘alternative dispute resolution’ in dealing with employment issues. Employers should continue to consider how ACAS Early Conciliation can be used tactically as a method of minimising the number of employment claims they receive, as well as reducing the cost of any claims which do arise.


The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.