Lizards, bats and workers' rights

This week’s House of Commons debate on the EU (Withdrawal) Bill illuminates the danger of the current government scrapping or watering down employment laws once we exit the EU. 

Post-exit, there will most likely be a degree of “cherry picking” of employment laws, with the government changing or scrapping many especially where doing so might be seen as “business-friendly” (TUPE anyone?). Without the European Court of Justice or EU to prevent this, it will be down to the government of the day, possibly using Henry VIII-style autocratic power with limited oversight in Parliament.

An unlikely event?  Why?  Whilst Theresa May says she respects workers’ rights, we know many Conservatives don’t and after all who’d bet on Theresa May still being PM in 2019?

Like Kenneth Clarke said in the House of Commons as part of the debate, concerning animal rights and employment protection, “there are members of the present government who are not excessively fond of lizards and bats, or workers’ rights”. He argued for the government to limit what he interprets as a power grab by them for the Henry VIII powers. 

Whatever the outcome of the Bill, workers’ rights need to stay.  In terms of the main world economies, the UK already has the fewest employment law protections of all except for the US and Canada.  Let’s not dumb ourselves down further and let’s look after our lizards, bats and workers.

David Sorensen  - Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

“The Uber hack” – 57 million accounts compromised?

The $68bn company admitted this week that their systems had been hacked and personal information stolen, in October 2016, and that Uber had paid the hackers $100,000 to destroy the information and keep the breach quiet.

The UK’s information commissioner’s office said, “Uber’s announcement about a concealed data breach last October raises huge concerns around its data protection policies and ethics… Deliberately concealing breaches from regulators and citizens could attract higher fines for companies.”

Was Uber right to cave in to the hackers?

I doubt it.

Not only does it send a signal (from one of the world’s biggest companies) that hacking pays – but it positively encourages the hackers to try again, and we can be reasonably sure that if the hackers got away with a mere $100K last time, they’ll be looking to up the ante next.

And Uber’s failure to come clean is surely a major mistake.  Not only is the ICO likely to take a dim view about a cover-up – but customers can rightly be outraged that their personal details, passwords and so on might have been compromised with no opportunity afforded to them to take steps to protect themselves (e.g. by making password changes).  The reputational cost alone is likely to be significant.

And all this as UK organisations are looking to 2018 and implementation of a new set of Data Protection laws to mirror the EU’s “GDPR” (General Data Protection Regulations) – a lot of work needs to be done between now and 25th May 2018 to ensure that effective compliance regimes are in place.

We are already advising a number of Unions about the implications of the new regime.

For professional, confidential advice contact Paul Scholey.

Mental Health at Work

Sadly, I deal with many workplace disability discrimination cases and a high proportion of those involve mental health issues. In my experience, employers find it much more difficult to understand and manage mental health issues in the workplace, in contrast to other disabilities.  

I therefore welcomed Theresa May’s announcement in January this year that an independent review was to be undertaken into how employers can better support all individuals in employment with mental ill health or poor well being to remain in and thrive through work. Last month, the government’s report was released.

As you may have seen in the headlines, the review uncovered some staggering facts and figures:

• 300,000 people with a long term mental health problem lose their jobs each year.
• 15% of people at work have symptoms of an existing mental health problem.
• Poor mental health of employees is costing employers between £33 billion and £42 billion a year, stemming from sick leave, staff turnover and individuals being less productive in their roles (“presenteeism”).
• The cost of poor mental health to the government is between £24 billion and £27 billion, resulting from costs of providing benefits, falls in tax revenue and costs to the NHS.
• And the cost to the economy as a whole from lost output?...between £74 billion and £99 billion a year!   

The “inescapable conclusion” was that it was massively in the interests of both employers and the government to prioritise and invest far more in improving mental health. I wholeheartedly agree with that conclusion.

But what can employers do about it?

The report proposes “mental health core standards”, a framework for a set of actions which could be implemented across all workplaces quickly and at little or no cost. It recommends the following:

• Implement and communicate mental health at work plans;
• develop mental health awareness among employees;
• encourage open conversations about mental health and the support available;
• provide good working conditions and a healthy work-life balance;
• promote effective people management through line managers and supervisors;
• routinely monitor employee mental health and wellbeing.  

Personally, I think the recommendations are a very good start.

So many of my cases result from a serious lack of appreciation and understanding of mental health issues and how to balance them against the employer’s need to achieve results, deal with absenteeism and address perceived performance issues. I therefore believe that implementation of the framework would give employers a very different perspective on these types of cases and, if well managed and well informed, I expect many employers will realise just how much those with mental health issues can thrive at work, as much as anyone else.   

Daniel Kindell  - Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

The Real Deal – Employees’ Pay

In real terms, pay is dropping.

A recent report from the Institute for Fiscal Studies (published on 20^th September 2017) has shown that public sector pay is approaching "historically low levels".

New figures show that as a result of Government pay freezes and caps, the average NHS health worker has suffered a real terms cut of almost £2,000 over the past 7 years.

The median average salary in the NHS in June 2017 was £31,526 compared with £29,132 in August 2010. Factor in inflation, and this computes to a real terms cut of £1,985 per year.

The reality in the private sector is worse with wages down by 5% since 2008, compared with a drop of 4% in the public sector. However, initially after the recession, public sector pay grew faster than private sector pay. As a result of restraint in the public sector since 2010, the gap in pay between the public and private sectors has now returned to pre-2007 levels.

This squeeze on living standards isn’t likely to improve anytime soon either, with inflation up due to the drop in the pound following the Brexit vote in June 2016.

Furthermore, the IFS estimated that the decision to lift the cap and increase wages, in line with either inflation or private-sector earnings, would be likely to cost the UK an extra £9bn by 2020 alone.

The Government is however under increasing pressure to lift the cap and announced a wage rise for police and prison officers, but the squeeze still continues for all other areas of the public sector.

Factor into this, the findings of the Low Pay Commission in their recent report (published on 17^th September 2017). This report found that more workers than ever are paid the minimum wage, or close to it. In addition, as many as 1 in 5 low-paid workers may actually be paid less than they are entitled to and this equates to between 305,000 and 580,000 workers. This is at its highest immediately after an uprating of the National Minimum Wage and declines by around half over the 3-6 months that follow.

On top of that, women are more likely to be paid less than minimum wage and are also least likely to complain about underpayment. Two-thirds of those who are underpaid are female. This proportion is known because of HMRC investigations, rather than complaints made by those women who consider that they are being underpaid.

Gender pay gap reporting may help in relation to this, but only for those whose employer has a headcount of 250 or more. So women in low-paid work, working for small organisations, seem to be offered little protection.

While ever inflation continues to rise and uncertainty around Brexit persists it seems likely that pay increases on the face of it could continue to amount to pay cuts in real terms and the squeeze on public sector workers in particular will continue. 

Hannah Boynes - Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Claimants wait in limbo for HMCTS guidance

The Judgment

As I am sure most of you are now aware, on 26 July 2017 the Supreme court ruled that the current Tribunal fees regime was unlawful. This has resulted in a period of great uncertainty in employment law as the government scrambles to implement a new, legal, fee structure as soon as possible.

In the meantime, the government has committed to refunding all Tribunal fees that have been paid and Tribunals have stopped accepting ET fees until a new system is devised.

Unforeseen implications

So, perhaps the biggest question that now remains is: what about the Claimants who lost out on access to justice due to unlawful fees?

Since the ruling a large number of claims have been lodged in the Employment Tribunals which cite the Judgment in R (on the application of Unison) v Lord Chancellor. These claims are being brought by individuals who had their original claims struck out for not paying fees, or allege that they were unable to bring a claim due to the cost of the fees. Clearly these Claimants have suffered due to the unlawful fee structure that the government implemented. However, remedy for these Claimants remains an unknown.

On 9 August 2017, the President of the Employment Tribunal, Brian Doyle, made an order to stay all claims citing the Supreme Court’s Judgment on fees, to await the decisions from the MOJ and HMCTS on how to deal with the practical issues arising out of the decision. However, the Stay was then lifted on 18 August 2017 without any further clarification of any process to reclaim fees or the view to be taken on “barred” claims. It has been stated, rather vaguely, by the government that they hope to publish guidance on how to claim for refunds this month.

Arguably if the government has already committed to repaying fees that were shown to deprive Claimants of access to justice it would seem nonsensical to not also allow the Claimants most directly disadvantaged by the fees some form of remedy as well.

Needless to say, the implications of the Judgment are wide ranging and complicated. But regardless of that, the government must now act quickly and efficiently to avoid any further failure to provide access to justice for the Claimants now left in limbo.  

James Battle

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Supreme Court rules tribunal fees are unlawful

On 26 July 2017, one of the most important judgments in the past 50 years of employment law was handed down. Yes, in an age of gloomy economic forecasts and disgruntlement in the workplace from squeezed workers, news reached us last Wednesday that restored our faith in the justice system.

The Supreme Court in R (on the application of Unison) v Lord Chancellor declared that employment tribunal and EAT fees are unlawful under both domestic and EU law. The Court’s view is that the Fees Order that introduced the fees was unlawful from the outset and must be quashed because it has the effect of preventing access to the tribunal system. Well, this is what critics of the fees have been saying since their introduction and they no doubt did a double take after the judgement. Fake news? Nope, a sensible ruling on the backdrop of research that revealed a 70% drop in the number of cases brought in the employment tribunal, since the fees were introduced.

It was Unison who waged a four year legal battle to get the fees scrapped, arguing that they prevented workers from seeking justice and were discriminatory towards women. To those who say trade unions are for bygone eras, think again!

The Supreme Court unanimously decided against the Government and found it was acting unconstitutionally when it introduced the fees. The immediate consequence of this decision is that the Fees Order is quashed meaning that tribunal and EAT fees cease to be payable and fees paid in the past must be reimbursed.

The fees were introduced under the Employment Tribunals and Employment Appeal Tribunal Fees Order on 29 July 2013, by the then Lord Chancellor Chris Grayling, in a bid to reduce costs and free up clogged courts. Under this Order, employment tribunal claimants and EAT appellants were liable to pay a fee of up to £1200 in order to bring and pursue claims and appeals, unless they qualified for fee remission on the basis of their disposable capital and gross monthly income.

In the main judgment, the Supreme Court noted that there is a difference between the level of the fees in the tribunal and those fees in the small claims court, where it is much cheaper to bring a small value claim. In addition Baroness Hale concluded that it was indirectly discriminatory to charge higher fees for type “B” claims (which include discrimination claims) than type “A” claims.

So what will happen next?

Firstly, this is a fantastic result for Claimants as it means individuals who have been treated badly by their law-breaking bosses can now take action without worrying about whether they can afford to finance a claim at the Employment Tribunal. However, it is unlikely the fees regime will disappear for good. It is possible the Government will bring in reduced fees under a new regime.

In a further victory for those who had to pay fees since 2013 the Supreme Court has confirmed that they will need to be refunded (approx £32 million). The immediate impact can already be seen as it is understood that employment tribunals are now refusing to take fee payments when hard copies of ET1 claim forms are presented in person.

Unfortunately, we will never know exactly how many people missed out or were put off taking action against their employers for unlawful actions in the workplace. However, it seems that the principles of fair access to justice have prevailed and this case is a significant step in the right direction towards balancing employer-employee rights in the workplace.

Kamran Sadiq - Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

The key to any employment rights is the ability to enforce them

So, we have an election coming up.

From an employment law perspective, and specifically from a worker's focus, which of the two main parties will make a real difference to employment law protections, should it win?

Both Labour and Conservative parties promise the protection of existing employment rights and propose the implementation of new ones. In fact, the Conservatives are trying to show themselves to be the worker's party.

There's many differences between the two in terms of proposals but one huge difference  overall - Tribunal fees. Picture a female employee who is on average earnings and has just been dismissed because she's pregnant - to bring a claim against her employer and go to hearing, she has to pay £1,200 in ET fees. That's right - £1,200 - with a new baby and no job. If she wins, she may get those ET fees repaid by the employer but it's not guaranteed. Not much of an option is it?

Labour have committed to ending ET fees. The Conservatives have committed to keeping them. Both parties offer new rights - however, as long as we have crippling ET fees, any new rights may be unenforceable in reality. The key to any rights is the ability to enforce them - ultimately, if needs be, to go to Tribunal.

From a Claimant lawyer's viewpoint, then, abolition of ET fees is the key difference. 

David Sorensen - Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Controversial Blanket-Ban Policy Receives CJEU Clarification

With the Court of Justice of the European Union’s opinion in the case of Achbita v G4S Secure Solutions recently announced, now seems to be an apt time to address religious freedoms at work and the possible impact of this case on them.

In this case a Muslim woman employed as a client-facing receptionist announced to her employer that she would be starting to attend work wearing a religious headscarf. Her employer objected to this stating that there was an unwritten rule requiring all client-facing staff to dress neutrally and avoid wearing “political, religious or similar signs”.

The woman insisted on wearing her headscarf and was dismissed; as a result she subsequently brought a claim of direct discrimination. This case was then referred to the CJEU by the Belgian Courts for clarification on whether or not an employer’s blanket requirement for its workforce to dress “neutrally” could constitute direct discrimination.

The CJEU has now returned its verdict on this case stating that the circumstances did not amount to direct discrimination as all customer facing employees were subject to the same requirements and it prohibited “all religious and political signs” not simply the signs of one faith or political group. The CJEU have left it to the Belgian courts to decide on indirect discrimination but have offered their view on the matter which seems to indicate they may find the policy legally sound.

Indirect discrimination, unlike direct discrimination, is defendable if it is objectively and reasonably justified. The CJEU seems to believe the Respondent met the threshold of objective justification in this case by citing that the Respondent’s aim to produce an image of neutrality was a legitimate aim as it only applied to customer facing roles. The judgment has, however, left the decision on reasonableness for the Belgium courts to decide by indicating the possibility of reinstatement of the Claimant in a non-customer facing role instead of dismissal.

Looking at the wider implications of this judgment it is important to consider what kind of impact allowing businesses to use this policy would have on workplace diversity. If this policy did become wide-scale practice, then it would arguably lead to a fall in people of faith working in customer facing roles. It is worth considering that for many people of faith wearing religious dress is not optional, it is often an important if not integral part of their faith. This would effectively make customer-facing roles unsuitable for some people of faith and seems to be a very restrictive precedent.

I personally find the company’s reasoning in this case troubling, and fail to see how independent religious or political beliefs of individuals working at a company offend neutrality. The idea that a person may see an employee respectfully expressing their belief through their dress and then attribute that particular faith or organisation to the employer of said employee seems to require some rather large assumptions. It would seem logical that neutrality is best shown, not in restricting all forms of religious and political expression for fear of association, but in having equal indifference towards them all.

The final judgement of the Belgian courts on the issue of indirect discrimination is still awaited.

James Battle - Legal Assistant

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Victory for gig-economy workers

Not surprisingly following the decision in the landmark Uber case in October 2016, the Employment Tribunals have again been asked to consider the employment status of the gig-economy workers.

The Uber case was of course the first of its kind in the UK. In this case the Tribunal found in favour of the Claimant in establishing that Uber drivers are not truly self-employed but are in fact “workers” entitled to certain employment rights under the Employment Rights Act 1996. It was of course a monumental decision after years of unscrupulous Employers avoiding paying their workers the National minimum wage and holiday pay amongst other rights.

In the most recent case of Dewhurst v CitySprint Ltd, the London Central Employment Tribunal found that a bicycle courier was an employee of the courier firm for the purposes of the Employment Rights Act 1996.

In Dewhurst, the Claimant was a cycle courier for CitySprint Ltd in London. Although she was not contracted to specific hours, she typically worked four days a week from 9:30am to 6:30pm. During her working hours, she was logged into the company’s tracking system and jobs were assigned on this basis.

Despite CitySprint Ltd issuing a document to all new couriers entitled “Confirmation of Tender to Supply Courier Services to CitySprint Ltd” describing couriers as self-employed, the Tribunal looked beyond this and, relying on the decision in Autoclenz Ltd v Belcher, looked at the reality of the situation before them.

The Tribunal found that the Claimant was expected to work when she said she would, was instructed to wear a uniform, was told when she would be paid and how much and was given directions to each job whilst logged into their system. She therefore was working on CitySprint Ltd’s behalf as a worker and as such was successful in a claim for two days’ holiday pay.

In the Judgement, Judge Jo Wade commented on the inequality of bargaining power in the relationship between the couriers and CitySprint. In paragraph 14 of the Judgement she wrote that “It is CitySprint which has the power to regulate the amount of work available, and it keeps its couriers busy by limiting the size of the fleet.”

The decision is another huge victory for gig-economy workers everywhere. It is certainly a warning to companies who try to mask their real intentions and avoid giving workers the rights they should be entitled to. I expect that we will now see a flood of similar cases brought before Employment Tribunals around the country. We already know of two hearings listed on similar facts before Employment Tribunals in March and April 2017 - watch this space.  

Laura Pickersgill - Trainee Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.