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.

When Christmas parties get out of hand

It is the season for Christmas parties and many workplaces will hold events in pubs or hotels where alcohol is likely to fuel the proceedings.

That is the context for the latest in a series of court decisions concerning the liability of employers for the actions of their employees. 

When I was first in practice my clients would often find that an employer argued that they ought not to be liable for what other employees had (negligently or wilfully) done – on the basis that such employees were “on a frolic of their own”.  The employer’s defence would be that they ought not to be held responsible for things that were not done in the ordinary course of employment.  So a bouncer using more than reasonable force to eject someone from a nightclub might result in a successful claim against the employer – since the bouncer was doing something that he was employed to do, even if he overdid it.  But the weaker the link between work and an employee’s conduct, the more likely the employer’s defence would be to succeed.

This all changed fairly dramatically in the Morrisons case this year when the supermarket was held liable for catastrophic injuries suffered by a customer following a very violent and quite unprovoked attack upon him by an employee at the supermarket’s petrol station.  It was just, said the Supreme Court, to hold the employer liable because of the “connection” between the employee’s work and the assault.  But that connection appears to have been little more than the fact that the employee was physically present at the place of work and inevitably going to come into contact with customers.

So it is somewhat surprising, then, to see the latest case – Bellman v Northampton Recruitment - taking a rather different tack in relation to an incident of violent behaviour at a Christmas party.

Mr Bellman was assaulted by the owner/manager of the company for which he worked, following an argument at a social event. 

Now, it is commonly accepted that the “workplace” does not end at the office door.  An employer can end up liable for, say, sexual harassment that happens when colleagues go together to the pub after work. 

In Bellman the Claimant and colleagues had been to a Christmas party and thereafter an impromptu drinking session took place until the early hours. 

Tragically Mr Bellman suffered a brain injury following an assault upon him by his manager.  He will not work again.

The High Court has held that the company is not liable to compensate Mr Bellman. 

The Judge took the view that there was not a sufficiently close connection between the “after party” and the Claimant’s employment.  This despite the fact that this event immediately followed the Christmas party, involved the Claimant, his boss and their colleagues, and the violence was the upshot of an argument that at least in part related to the manager’s assertion of his absolute authority at work. 

Since the manager himself is uninsured and not in a financial position to meet a substantial compensation payment if a claim against him succeeds, Mr Bellman’s main hope for a remedy has to lie in a claim against the employer – which of course has the benefit of employer’s liability insurance.

So Mr Bellman at present is without a remedy against the firm; and his remedy against his manager is not worth pursuing.

I find the decision in Bellman surprising, having regard to the Supreme Court’s view in Morrisons.  It seems to me that there was here altogether just as much of a “close connection” – indeed, arguably a greater one (bearing in mind the context of the argument that erupted) – than in the earlier case.

Claimant will, rightly, look for “deep pockets”.  It seems to me not unreasonable that an employee facing career ending injuries ought to have the opportunity to take advantage of insurance that can spread the cost of compensation across the community of employers generally.  That’s the whole point of insurance: so that the many can help the few.  If the Supreme Court’s view – rightly, in my opinion – is that a “connection” with work needs be made out in only pretty general terms, then that has to be a good thing for deserving Claimants in the general scheme of things and is not going to put the cost of employer’s liability insurance through the roof.  I will revisit the point if, as I suspect, Bellman is pursued on appeal.

Paul Scholey - Senior 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.

"Employee Shareholder” regime

The Autumn Statement sees  the Chancellor phasing out the “employee shareholder” regime – initially by removing the tax advantages associated with it; but in due course it is expected to disappear altogether.

This is no great surprise.

We blogged about the scheme when it was introduced in late 2013.  You can read our reservations here:  http://morrishsolicitors.blogspot.co.uk/2013/09/employee-shareholders.html

Not for the first time in the last few years, dogma has overcome common sense – until the stark weight of reality sets in.

We predicted the scheme would be short-lived, but even in April of 2016 some tinkering had been required.

It turns out, unsurprisingly, that the idea of selling your employment rights was not terribly attractive – save for a few who saw tax advantages associated with it – and it’s those loopholes that were limited in April, and are now being closed as a precursor to abolition of the scheme entire.

Ironic then, that a proposal driven by the ideology that entrepreneurs don’t need rights but will trade them for a business share, ends up being a tax avoidance mechanism for the well off.

We’ve blogged before, too, about governments and their attitude to consultations (i.e. that they don’t tend to listen to the experts – or indeed anyone).  A classic example, we think.  No-one wanted the ES regime, no-one thought it was needed or desirable or likely workable.  A few wasted tax pounds later, and back to square one it is.  We know that “experts” don’t seem to be flavour of the month this year, but really?

Paul Scholey - Senior 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.

Future world of work and rights of workers inquiry

The Business, Energy and Industrial Strategy Committee has launched an inquiry into the ‘future world of work’ and in particular, the 'gig economy' – agency workers, zero-hours work, the use of ‘self-employment’, worker status, low pay and poor working conditions. They refer to the recent Sports Direct scandal and also other organisations with similar poor working conditions.

This is good news. Hopefully, whatever its outcome, turning the lamp onto these types of employers can bring some heat on these organisations with more public attention drawn to the growth of the ‘precariat’ – individuals who work in poor conditions with weak terms and conditions, be it low pay, the absence of paid holiday, sick pay and the like.

My view is that the rise of the ‘precariat’ is nothing new – this country has a history of shoddy employers treating working people poorly and of governments legislating to either counter this, with increased protections (the introduction of redundancy pay in the 1960s, unfair dismissal in the 1970s and the recent(ish) minimum wage in the 1990s) or to aid it, by reducing employment rights (the scrapping of wages councils, the introduction of ET fees of up to £1,200, limits on compensation – all within the last 3-4 years). Since 2010, the move has been to reduce employment protection and to restrict trade unions. My view is that this has encouraged shoddy employers and weakened the position of employees.

Evidence suggests that as a result of the reduction in protections, the equal pay gap is now growing and certain sectors of the workforce, such as disabled people and pregnant women or women on maternity leave, are suffering more, not less, discrimination. I also believe that it has encouraged the growth of the ‘gig economy’ – individuals working in sham ‘self-employment’ situations or in weak zero-hours roles with little control or say about the number of hours they work. This causes illness, harms the economy and damages lives, not least children of adults who work for low pay, on horrendous hours and with uncertain futures.

I’m pleased that the Committee have this on the agenda. Let’s hope for all concerned, not least our children and grand-children, that whatever recommendations are made, they are followed by those in power and a more secure workforce results with more (not less) permanent, well-paid jobs. After all, apart from shoddy employers and obscenely profitable multinationals, how do we as a nation benefit from the rise of the precariat?

The Committee is seeking comments – please do so at:

http://www.parliament.uk/business/committees/committees-a-z/commons-select/business-energy-industrial-strategy/news-parliament-2015/the-future-world-of-work-and-rights-of-workers-launch-16-17

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.

Exit payments in the public sector

Exit payments (or severance payments) in the public sector have been the subject of much media scrutiny in recent months.

As employment lawyers acting for private and public sector employees, we regularly come up against these issues when it comes to trying to advise on and negotiate settlements or agree termination packages. As trade union lawyers, we are also opposed in principle to any government attempts to water down employee rights.

On 26 September 2016, HM treasury issued its response to a consultation on reforms to public sector exit payments. The proposed changes will affect the civil service, the NHS, teachers, police, firefighters, members of the armed forces and employees of local authorities.

The government proposals are as follows:

1. Setting a maximum tariff for calculating exit payments at three weeks' pay per year of service.
2. Introducing a cap of up to 15 months' salary on all redundancy payments.
3.  Setting a maximum salary for the calculation of exit payments.
4. Tapering the amount of lump sum compensation an individual is entitled to receive as they get close to the normal pension age or target retirement age of the pension scheme to which they belong, or could belong, in that employment.
5. Requiring employer-funded early access to pensions to be limited or ended, denying access altogether by increasing the minimum age requirements or introducing more flexibility (which I interpret as ‘restrictions’) as to the circumstances in which pension top ups are available.

The government says these reforms could achieve savings of up to £250 million a year and bring public sector exit terms in line with those in the private sector.

And let’s not forget, the changes proposed above are in addition to two other recent initiatives:

1. Imposing a cap of £95,000 on the total aggregate value of most public sector exit payments.
2. High-earning employees leaving the public sector to repay some or all of their exit payments if they return to public sector employment within 12 months of their departure.

The government received around 350 responses to the consultation on public sector exit payments. The majority opposed the proposals. However, despite that opposition (and as is commonly the case these days) the government has suggested that it will nevertheless be going ahead with some or all of the changes. I begin to wonder whether responding to these consultations is at all worthwhile.

Aside from the obvious attack on public sector pay and benefits, two major issues were raised in opposition to the proposals:

1. What about collective agreements?

The public sector has the benefit of numerous workplace collective agreements, carefully negotiated between employers and trade unions, often over decades, and which afford employees significant redundancy benefits. Those collective agreements are industry-specific, balancing the needs of the employee and employer. Imposing restrictions that cut across these agreements will be damaging, have a disproportionate impact on particular groups of employees and could have a serious impact on staff morale.

2. What about discrimination?

Might employer-funded early retirement and tapering payments for those close to retirement age be age discriminatory? There are certainly cases where it has been argued and questions of ‘justification’ and ‘proportionality’ are surely going to come into play, depending what form the final changes take.  It is understood that the government will consider the case for applying elements of the framework flexibly, for example, where it can be demonstrated that a particular option may not lead to significant cost savings, where there is an alternative approach that may lead to costs savings, or where a particular option may have an unwarranted impact on equality. However, just how much leeway there is for this remains to be seen.  

The government wants departments to begin restructuring their exit terms immediately and to produce proposals for reform by the end of 2016. Departments should consult on the proposals and follow the normal process of discussions and negotiations with trade unions and other workforce representatives, to try to seek agreement to them. The government would like the entire process to be concluded by the end of June 2017.  Should it not be possible to achieve meaningful reform within this timescale, the government will consider options for primary legislation to take forward reform.

So it is not so much a question of “if” these changes come in we need to be prepared for them, it is a question of “when” they do but I think we can count on continued strong opposition from trade unions. 

Daniel Kindell - Associate 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.