The Annual Employment Law Update for January 2018 covers key developments in employment law over the past year, including the ruling against tribunal fees, gig economy status cases, and updates on holiday pay and discrimination issues. It also highlights upcoming changes such as gender pay gap reporting and Brexit implications for employers. Additionally, the document discusses the necessity for employers to review policies related to sexual harassment and hidden disabilities, emphasizing compliance with new data protection regulations set to take effect in May 2018.

1. Annual employment law update
January 2018, Birmingham

2. Today’s session
Review of the last year:
1. Tribunal fees and refund scheme
2. Gig economy and employment status
3. Holiday pay update
4. Case law update – vicarious liability and “a week’s
pay”
5. Discrimination case update
6. Sexual Harassment
7. Hidden disabilities

3. Today’s session
Looking forward:
1. Gender pay gap reporting
2. Taxation Changes
3. Data protection
4. Brexit

4. 1. Tribunal fees and refund
scheme

5. Tribunal fees and refund scheme
- Tribunal fees ruled unlawful from the
outset by Supreme Court
- Refund scheme now open
- Govt will repay £27 million in fees
previously paid
- Fee re-introduction?

6. What next for employers?
- Opening of the floodgates?
- Reimbursement of fees made by
employers
- Tribunals buckling
- Risk of previous claims being re-opened
- Watch this space

7. 2. Gig economy and Employment
status

8. Uber (again…)
- Last year we covered the ET decision in Aslam &
Farrar v Uber
- The EAT dismissed Uber’s appeal in November 2017
- Uber will appeal to the Court of Appeal
- Decision fact sensitive, but…

9. Deliveroo’s turn
Independent Workers Union of Great Britain v
RooFoods Ltd (t/a Deliveroo) (CAC)
- CAC held that riders were NOT workers
- Bucks trend of gig economy cases
- Major difference between Deliveroo and Uber is
right to substitution was genuine and used in
practice
- Not strictly binding

10. Taylor Review
The Taylor Review report was published in July 2017
and recommended:
– Renaming “worker” to “dependent contractor” and
re-clarifying distinctions
– Additional rights for dependent contractors such as
written statement of terms
– Expedited hearings for determining status
– Right to guaranteed hours after 12 months on a ZHC
– “Rolled up” holiday pay for dependent contractors
– But…

11. BUT….
- The Government announced recently that reforms
have been put on hold until 2019
- For now, watch this space

12. 3. Holiday Pay Update

13. Recap
- The EU guarantees workers a minimum of 4
weeks’ paid leave
- British government goes further and guarantees
a total of 5.6 weeks
- Divergence between EU and domestic law –
based on “a week’s pay” or “normal
remuneration”?

14. Recap
• Last year we covered…
– British Gas Trading Ltd v Lock (CA) –
commission ought to have been factored into
holiday pay for Mr Lock
– Fulton v Bear Scotland (No. 1) (EAT) – non-
guaranteed compulsory overtime must be
accounted for

15. Developments
Dudley MBC v Willetts (July 2017)
– EAT held that voluntary overtime pay, out-of-hours
standby payments and call-out payments should be
included in holiday pay IF they are part of “normal
remuneration”
– But what does “normal” mean?
– This case shows danger of underpaying holiday – 56
potential claims

16. Back pay?
- Claim must be made within 3 months of last
deduction going back a total of two years. But…
King v Sash Window Workshop Ltd (ECJ)
– Commission only salesman took no paid holiday for
13 years
– ECJ held that under EU law, he is entitled to a back
payment in lieu for the entire period
– Not directly applicable to underpayment – argument
yet to be raised

17. So what?
- Do you have a lot of employees who:
– Undertake voluntary overtime; or
– Work on results based commission?
- Consider reviewing working arrangements and
reviewing holiday pay calculation formulae
- Although each case turns on its own facts, compare
your situation with that in the cases

18. 4. Case update

19. Vicarious liability
Various claimants v Wm Morrisons Supermarket PLC
(HC)
- Mr S published personal details of 100,000
employees on internet – sentenced to 8 years in
prison
- High Court held that employers can be vicariously
liable for employee breaches

20. “A week’s pay”
University of Sunderland v Drossou (EAT)
- “A week’s pay” under ERA 1996 includes employer
pension contributions
- Impact on compensation under TUPE and unfair
dismissal compensatory awards
- Defined benefit schemes?

21. 5. Discrimination case update

22. Developments in religious
discrimination
Achbita v G4S Secure Solutions NV (ECJ)
- Belgium company dress code banned wearing of
visible signs of religion or belief
- Ms A was dismissed for refusing to remove Muslim
head scarf

23. Developments in religious
discrimination
Achbita v G4S Secure Solutions NV (ECJ)
- ECJ held NOT direct discrimination, but could be
indirect discrimination
- No particular religion or belief treated differently
- Ban can be justified providing it is a proportionate
means of meeting a legitimate aim

24. Developments in religious
discrimination
Bougnaoui v Micropole SA (ECJ)
- Decision released on same day as Achbita
- Customer complained about Ms B’s head scarf
- M asked Ms B to remove. Dismissed her when she
refused

25. Developments in religious
discrimination
Bougnaoui v Micropole SA (ECJ)
- ECJ held direct discrimination and no occupational
requirement
- Difference between Bougnaoui and Achbita?

26. Developments in disability
discrimination
Peninsula Business Service Ltd v Baker (EAT)
- Mr B claimed his dyslexia constituted a disability
but did not prove it
- P subjected Mr B to surveillance
- Mr B claimed harassment on basis that decision to
conduct surveillance was linked to his dyslexia
- EAT held NO protection from harassment for
alleged disability

27. Associative/perceived
discrimination summary
Type of claim Protection from DD, ID and
harassment under EqA?
A has a protected characteristic (“PC”) Yes
A does not have a PC, but is closely
associated with C who does
Yes
B knows that A does not have a PC Yes
B wrongly perceives A to have a PC Yes
A alleges to have a PC No

28. 6. Sexual harassment

29. How prevalent is it?
0 5 10 15 20 25 30 35 40
Displays of pornography
Sexual comments about women/another woman
Unwated messages of sexual nature
Unwelcome sexual advances
Sexual assault
Unwanted touching
Unwelcome sexual jokes
Sexual comments about body and/or clothing
Serious sexual assault/rape
%

30. The law
Section 26(2) – Sexual harassment
A engages in unwanted conduct of a sexual nature
which has the purpose or effect of either violating
B’s dignity or creating an intimidating, hostile,
degrading, humiliating or offensive environment for
B

31. The law
Section 26(3) – Less favourable treatment for
rejecting or submitting to harassment
Sexual harassment + less favourable treatment due
to B’s rejection or submission to the conduct = s26(3)
claim

32. The law
Are employers liable for the harassment of their
employees?
- General rule is YES, but subject to some
exceptions:
- In the “course of employment”?
- “Reasonable steps” defence
- Liability for third-party harassment?

33. What can employers do?
- Comprehensive anti-harassment policy
- Follow a stringent investigation procedure
- Regular compulsory training for all staff
- Policy should be re-iterated before harassment
“hot-spots”

34. 7. Hidden disabilities

35. What do we mean by “hidden
disability”?
- Not always self-evident
- Can include anything from mental health
difficulties to autism or Crohn’s disease
- According to WHO, how many people live with a
disability worldwide?

36. Impact
Thriving at work report (October 2017):
- 300,000 people with long term mental health
problems lose jobs each year
- 15% of people at work exhibit symptoms of existing
mental health condition
- Poor mental health costs employers between £33
and £42 BILLION per year

37. The law on reasonable
adjustments
- Duty only arises where employee (A) disabled for
EqA purposes
- Ignorance not always an excuse
- Is A placed at substantial disadvantage compared
to non-disabled person?
- What can constitute a “reasonable” adjustment?

38. Recent case example
Government Legal Service v Brookes (EAT)
- Job applicant with Asperger’s required to sit
multiple choice test
- GLS refused to adjust test
- EAT upheld indirect discrimination and failure to
make reasonable adjustment claims

39. Practical tips
- Break the culture of silence
- Give employees/applicants a chance to disclose
- Err on the side of caution
- Provide employees with good working conditions

40. Looking forward…

41. 1. Gender pay gap reporting

42. Gender pay gap reporting
Private sector employers must
publish their first reports by
4 April 2018

43. Gender pay gap reporting
Who does it cover?
- Private or voluntary sector employers with 250 or
more employees on 5 April each year
- Reporting obligations only for “relevant
employees”
Where must it be published?
- Own website
- By Government

44. Gender pay gap reporting
What should you do?
- Are you a relevant employer?
- Identify any uncertain areas
- Which pay needs including?
- Calculate the gap before the deadline
- Action plan?
- If in doubt, take advice

45. Non-compliance
EHRC
Adverse
publicity
Reputational
damage
Unlawful

46. 2. Taxation changes
• From 6 April 2018:
– ALL PILONS are taxable and subject to class 1 NICs
• From 6 April 2019:
– Termination payments above £30,000 now subject to
employer NICs rather than just income tax

47. 3. A brief look at GDPR
- New regime for data protection coming into force
25 May 2018
- Significant enhancements to protection
- Examples of some of the changes:
– Tougher sanctions – up to 4% annual worldwide
turnover
– Higher bar for lawful processing
– One month to comply with SARs rather than 40 days

48. 4. Brexit

49. Where are we now?
- “Phase 1” negotiations complete
- EU nationals to apply for settled/temporary status:

51. Settled Status applications
- Digital, streamlined and user friendly
- Cost of a passport
- Minimal supporting documentary evidence
- Decision in 2 weeks

52. The future?
- Biggest annual reduction in net migration
- Mass exodus of EEA workers
- Government committed to reducing migration to
the tens of thousands
- Home Office leaked paper – new work permit
system?

53. What should employers do now?
- Audit
- Communicate
- Review recruitment and training
strategies

54. What should employers do now?
- Get a Tier 2 Sponsor Licence?
- Update Right to work checks
- Lobby, Lobby, Lobby

55. Speak to us…
James Tait
james.tait@brownejacobson.com
0121 237 3999
Helen Badger
Helen.badger@brownejacobson.com
0121 237 4554

56. Connect with us on LinkedIn –
https://www.linkedin.com/company/browne-
jacobson-llp where you’ll find useful tools and
information that will be of interest to you

57. All information correct at time of production.
The information and opinions expressed within this
document are no substitute for full legal advice. It is for
guidance only and illustrates the law as at the published
date. If in doubt, please telephone us on 0370 270
6000.
© Browne Jacobson LLP 2018 – The information
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