As we approach the end of the year, where the days get shorter and the nights get colder, we take a look back at some of the more interesting employment law talking points of the last 12 months and forward to what the new year holds in store.
With festive spirit and in the context of the beloved yuletide ditty, the 12 Days of Christmas, follow us as we release a short blog on each of the next 12 working days.
On the twelfth day - Twelve drummers drumming (quietly)
How far should an employer be required to go in order to protect workers' personal safety at work? This was a question considered by the High Court earlier this year and it has become a hot topic.
In Goldscheider v Royal Opera House  EWHC 687 (QB) the Court heard that a professional viola player had sustained acoustic shock when rehearsing as part of an orchestra. The claimant successfully claimed the orchestra was in breach of various health and safety regulations and common law duties. The Court held the orchestra should have carried out a risk assessment, it should have done everything reasonably practicable to remove or reduce the risk of any kind of personal injury and it should have instructed the musicians to wear protective equipment. The Royal Opera House is appealing this decision but the message to employers is clear; health and safety obligations at work appear to be reaching a crescendo.
While causation between any alleged breach and loss would be addressed on a case by case basis and a contribution argument may run as a defence, employers should be aware that obligations (such as risk assessments and training) with respect to health and safety at work are mandatory for employers. This was a civil claim, but the facts could have given rise to a criminal justice investigation by the Health and Safety Executive and / or the Local Authority.
Clare Prower, Associate, London
Anne Davies, Consultant
On the eleventh day - Eleven bakers piping
Just when we thought that baking and piping cakes was all sugar and sweetness, one of the more high profile cases of last year, namely that of Lee v MacArthur and Ashers Baking Company Ltd, proved that it was anything but.
The case involved a Christian bakery which refused to bake a cake for a gay customer with the slogan ‘Support Gay Marriage’ for a private function. The customer made a claim for direct discrimination because of his association with the protected characteristic of sexual orientation. Despite success for the customer in both the lower court and the Northern Ireland Court of Appeal, in October the UK’s Supreme Court reversed these decisions and granted the Christian bakery’s appeal.
The Supreme Court explained that the bakers could not refuse to supply their goods to Mr Lee because he was a gay man or supported gay marriage, but that was quite different from obliging them to supply a cake iced with a message with which they profoundly disagreed.
This is the latest in a long line of goods and services discrimination cases looking at the rights of both Christians and the gay community, and it is not likely to be the last.
To read more about this, click here.
James Hockin, Associate, London
On the tenth day - Ten lords agile working
There was a time when it was assumed that ladies would want to do the 'leaping' at work, whether by asking to work from home or otherwise trying to build some flexibility into their working lives to juggle childcare commitments. Some employers resisted this, tied to a culture of presenteeism and fearful of opening the floodgates. But times are a-changing and, with the rise in agile working, 'lords' are now a-leaping from workspace to workspace as well, hot-desking in the office and/or working remotely on a regular basis. Indeed, Withers joined this trend in 2018 by moving to a new open plan, agile office.
As this trend takes hold, some are concerned that more 'enforced' agility means some employees' needs are being overlooked. There is also unease about employees feeling more isolated and disconnected from colleagues, potentially leading to mental health issues. In the articles below, we asked whether agile working is something that should be implemented for all and considered how best to implement agile working while still meeting employee needs. These issues are likely to continue to be grappled with in the new year as more and more employers look to change their working practices.
For more on this topic, follow these links:
Splendid isolation – are our new ways of working making us ill?
Employers: Do you need a more flexible approach to agile working?
On the ninth day - Nine ladies dancing definitively?
What do dancing ladies have to do with employment status? Quite a bit, as many employment lawyers will tell you. In 2012 Nadine Quashie, a lap-dancer at two Stringfellows nightclubs in London, failed to convince the Court of Appeal that she met the definition of an 'employee' with the right not to be unfairly dismissed. The facts of the case anticipated many of the recent court battles over employment status and what was distinctive about the case at the time - the mixed bag of obligations and freedoms that characterised her relationship with the club – has been seen time and again, recently in celebrated cases such as Uber v Aslam and Pimlico Plumbers v Smith, heard in 2017 and 2018 respectively.
Whether they are dealing with cab drivers, plumbers or table dancers, tribunals will be looking for control by the employer and reciprocal obligations – the hallmarks of an employment relationship. Uniforms, be they the branded overalls worn by a plumber or the 'elegant…outfits from an approved supplier', in which Ms Quashie was expected to dress, will be one of the many factors a tribunal weighs up in deciding what kind of relationship has been created. So too will the payment arrangements – although in that respect the courts' thinking has moved with the times. The Court of Appeal did not think that the fact that Ms Quashie took some of the business risk and, famously, was paid by clients in 'heavenly money' was compatible with employment status. The shifting of business risk is now a commonplace in employment status cases and will be scrutinised with great care in this era of gig working.
The Government announced on 17 December its response to Matthew Taylor's 2017 report on modern working practices. We can expect a set of concrete proposals to emerge in the coming months, including better tools for navigating the thicket of employment status. But status has historically been a difficult matter to pin down to principles. There is a very good chance that the legacy of the dancing lady will live on.
Christina Morton, Professional Support Lawyer, London
On the eighth day - Eight carers sleeping-in
Just like the original maids from the song, certain workers have to be available to tend to others at usually unsocial times of day, including a 'sleep-in' shift from 10pm to 7am where they are required to sleep at or near work and, whilst they're expected to sleep for most of the shift, they must be available and can be woken for duties.
This year, in Royal Mencap Society v Tomlinson-Blake the Court of Appeal answered the previously unsettled question of whether 'sleep-in' shift workers are entitled to the National Minimum Wage ('NMW') for the whole of their shift, or just the time they're required to be awake. The answer is no: hours will only be counted for NMW purposes when the workers are, and are required to be, awake to perform their specific duties.
What if it's more nuanced and the 'maids a-milking' were instead expected to wake up at set times every two hours to milk, but otherwise sleep? Is this work, or does the Mencap judgment mean they're entitled to 15 minutes' pay at NMW for a very broken night's sleep? For now, this remains unclear.
The respondent in the Mencap case has applied to the Supreme Court for permission to appeal so this could be one to watch next year.
Alexandra Thompson, Associate, London
On the seventh day - Seven swans a-cycling
The last couple of years have seen an increase in focus on the rights of athletes and the role of sports governing bodies to exercise a duty of care towards those athletes. This month the employment tribunal in Manchester is hearing a claim to establish whether members of the British Cycling team have the status of either employees or workers. If the claim is successful this could pave the way for discrimination, whilstleblowing and potentially unfair dismissal claims by funded athletes who have been harassed or removed from their programmes. The knock on effect for the sports world could be substantial and the judgment is eagerly awaited in the new year.
To read more about this, click here.
Libby Payne, Associate, London
On the sixth day - Six geese (and ganders) a laying
The geese are a-laying, but does today's shared parental leave law really challenge the perception of childcare as predominantly a role for the mother? It appears not. A government press release at the start of this year indicated that the take-up of shared parental leave is estimated at only 2%, despite approximately 285,000 couples being eligible each year. Seemingly around half the population are not even aware of the options available to them. Those that are aware are potentially discouraged by the low statutory rate at which shared parental leave is paid, with many employers not prepared to pay enhanced rates, even though they do so for women on maternity leave. But is this practice not discriminatory?
Two recent cases show that the answer is not straightforward.
In Capita Customer Management Ltd v Ali the Employment Appeal Tribunal ('EAT') held that the tribunal was wrong to say that maternity leave is for childcare. Rather, it is for women to prepare for and recover from birth and is distinct from parental leave which is primarily for childcare purposes. It is not therefore direct sex discrimination to pay shared parental pay at a lower rate than maternity pay.
In Hextall v Chief Constable of Leicestershire Police the EAT considered that it might be possible for differing payment polices for maternity leave and shared parental leave to amount to indirect discrimination, unless the employer can show that the policy is a proportionate means of meeting a legitimate aim (for example, improving retention rates of women). The case has been remitted to be heard by a fresh tribunal and has left little clarity in this uncertain territory.
Legal risk aside, employers might also decide that offering enhanced pay to all new parents is likely to be perceived as a valuable benefit that might improve staff retention generally – and encourage the geese to keep laying!
Christina Morton, Professional Support Lawyer, London
Tuli Gazelle, Trainee, London
On the fifth day - Not quite five gold rings
2018 has seen a number of high profile cases brought by female senior executives demanding changes to corporate pay practices. These cases raise awareness of the differences in rates of pay for men and women undertaking comparable jobs.
Key to avoiding claims are:
- Adopting transparent pay structures and processes as opposed to pay secrecy for determining bonuses and pay increases and other changes to remuneration. The Equality Act protects employees if they have conversations about pay for the purposes of establishing if there is an issue about equal pay.
- Being aware of conscious and unconscious bias - how confident are you that your pay decisions stand up to scrutiny?
- Acting consistently with company values - employees (and their lawyers) will check whether the company is living up to its promises and will use reputation and PR as leverage to negotiating better terms.
- Carrying out pay audits to check pay consistency; employees often use a Subject Access Request to obtain their personal data.
- Not being complacent about employees pursuing discrimination claims. We are seeing increased numbers of employees grouping together to find solidarity in litigating and sharing legal fees.
Claire Christy, Partner, London
On the fourth day - Four whistleblowing birds
We have had statutory protection for whistleblowers for nearly 20 years. However, the legislation does not work well and, over the last year, the Courts have been busy clarifying key aspects of the rules.
In Jhuti, the Court made whistleblowing more difficult for Claimants. It held that when determining the 'reason for the dismissal', the tribunal need to consider what knowledge the dismissing party had in their possession at the time of the dismissal and taking in to account this knowledge, did they believe their actions to be appropriate. That meant that where another co–worker had tried to get the Claimant fired because she had made protected disclosures to her line manager, this could not be attributed to the employer, provided the person making the dismissal decision was not aware of the behaviour that the co-worker was using to get the Claimant fired.
This case highlighted the need for having information barriers to ensure that anyone dealing with a disciplinary issue is also not the same person to whom a protected disclosure is made and has been dealing with that, so that that information cannot taint a decision. So employers would do well to keep their dismissal decision makers at a safe distance from any protected disclosures made by an employee.
By contrast, the Court opened up a new head of claims for whistleblowers in Osipov. Here the Court held that co-workers who were involved in the decision to dismiss could be personally liable for the losses that the Claimant suffered in consequence of the dismissal. The Court commented that Claimants were unlikely to sue co-workers very often. We disagree and believe that there will be an immediate increase in this type of claim.
In the Chestertons case, the Court looked at whether (and when) a whistleblower's disclosure, which relates to a breach of their own contract of employment, can be in the public interest as well as in the personal interest of the employee. The Court concluded that a disclosure relating to a breach of an employee's own contract of employment may still be held as made 'in the public interest' if a tribunal considers that the whistleblower held a reasonable belief that the disclosure was made in the public interest.
Finally, the Court grappled with a tricky distinction in the case of Kilraine, specifically whether the disclosure comprises of factual information or an allegation. They concluded that the distinction was too fine and an allegation could too constitute a disclosure.
These cases, spread over the past year, have clarified some of the finer points surrounding whistleblower's rights. But, whilst some points are a little clearer, there is still plenty of murky water in the law. Hopefully, 2019 will shed more light on what we can only express is one of the more complicated areas of employment law.
Meriel Schindler, Partner, London
On the third day - Three
French British hens
The 12 Days of Christmas is thought to be French in origin and, whilst the etymology behind the carol's lyrics is unknown, one interpretation has suggested a deeper, spiritual meaning beneath the carol's light-hearted façade. This interpretation sees our three 'hens' standing for 'Faith, Hope and Love' and, as we face the current uncertainty surrounding the terms of our withdrawal from the EU as well as the growing possibility of a second referendum, these three French hens are exactly what we need.
Despite the lengthy debates surrounding Theresa May's Brexit deal, little has actually been said about its implication for workers' rights. EU law - which covers everything from discrimination at work to equal pay and paid holidays - has introduced rights that did not previously exist in Britain and, via its membership of the EU, Britain is subject to a European court that, on the whole, interprets the law more favourably for workers than British courts do. So what is going to happen following Brexit?
When (if) it leaves the EU, the UK will enter into a transition period during which the status quo will be maintained. Following this, we enter into either a backstop arrangement or into a new arrangement with the EU. The backstop arrangement currently contains the UK's comforting commitment not to reduce employment rights below those in place in the EU. However, this statement currently appears to be unenforceable. The alternative new arrangement contains little detail about workers' rights save the implication that the more integrated the UK is with the EU, the more the UK will have to obey EU employment law.
Clearly this situation remains one to watch closely into the new year - let's hold onto our three hens as we do so.
Katie Williams, Associate, London
On the second day - #MeToo turtle doves
Although the phrase 'Me Too' has been in use since 2006 and was revived in late 2017, 2018 was arguably the year it fully took flight in the UK, as #MeToo. A spate of very public scandals and allegations swirled around institutions from the House of Commons to the (now defunct) charity The Presidents Club, amongst others, and allegations continued to emerge against specific individuals.
One strand of these stories was a debate about gagging clauses (also known as confidentiality provisions or non-disclosure agreements/NDAs). Parliament's own Women and Equalities Committee criticised (in its report on Sexual Harassment in the Workplace*(1)) the unethical use of NDAs by some employers and expressed concern that NDAs were being used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye, for fear of bad publicity.
Respondent employers and claimant employees both grappled with these issues. There is near-universal condemnation of NDAs being used to cover up serious misconduct, including (but not only) criminal acts. There is also a widespread view that NDAs reflect and perpetuate an imbalance of power, the economically stronger party muting and continuing to control the weaker. However, there remains a strand of opinion arguing that, in certain cases and contexts, there can be value to all parties – employer and employee alike – in resolving issues between them swiftly, and so avoiding the cost and stress of litigation and ongoing publicity for either party.
We reflected on some of these issues back in June, but they seem likely to remain with us into the New Year as the Committee has now launched a specific inquiry into NDAs, to examine wider issues relating to their use in discrimination cases*(2).
To read more on this, click here.
Hugh More, Special Counsel, London
On the first day - a partridge in a GDPR tree
Just like our friend the partridge in the song, GDPR seems to have appeared at least once every day over the last year, even months before the legislation was implemented on 25 May 2018.
As all employers' process data of their employees, the implementation of GDPR has had a wide reaching effect. If an employer was to write a Christmas wish list of things to work on to ensure that their business was in top shape for the new year, reviewing (if they had not already) the way in which they process employee data, the reasons for why they process the data and the policies they have in place for collecting, transferring and storing employee data would be at the top of that list. Employers should also review their data protection policies and provide refresher training on data protection, to ensure that all employees, especially those who handle personal employee data, are aware of the new regulations.
The Morrisons case, in which the supermarket was found to be liable where an employee deliberately committed a data breach (for malicious reasons), has stressed just how costly the new regulations can be to an employer. By Christmas Day, seven months will have passed since its implementation. But, as this brief note highlights, employers should not just sit back and enjoy mince pies and mulled wine – they should be aware that this is an ongoing process that requires regular review, and there are still steps that they should take to ensure compliance with GDPR in the New Year.
Caroline Mathews, Associate, London