There has not really been very much by way of legislation in the past quarter, although I do mention some interesting cases below.
Inevitably, one recent issue has overshadowed all others …
There has been a certain amount of speculation as to what will happen to employment law in this country, once the U.K. is free of interference from Brussels (and Strasbourg).
Perhaps in common with other areas of life, it could be that we notice very little difference.
It is sometimes forgotten that the U.K. had legislation relating to sex and race discrimination and equal pay even before the last Referendum, in 1975. It seems that we did not need faceless, unelected European bureaucrats then to tell us how to do the right thing.
Of course, we have Europe to thank for some fundamental pieces of employment legislation (TUPE, discrimination in areas other than those indicated above, family‑friendly policies) but it is worth remembering two things.
The first is that, in respect of European Directives covering these areas and others, they set a minimum standard. It is not unusual for the U.K. to “gold-plate” Europe’s requirement and give employees even more rights than the E.U. dictates.
Secondly, a significant number of employment rights in this country have nothing to do with Europe. Unfair dismissal and the Living Wage, to name but two, are entirely home-grown.
It is extremely unlikely, I would suggest, that there is going to be wholesale repeal of U.K. employment law that has emanated from Europe. Parliament would have to overturn the U.K. legislation enacting it in any event.
Moreover, there must be the possibility that, as part of the price for our staying within the single market, we have to guarantee UK employees the same employment rights and health and safety protection as those which apply in the rest of the EU. To do otherwise would enable us to compete unfairly.
Where we might see a difference is in no longer having to follow the Judgments of the European Court of Justice (ECJ). At the moment a UK Employment Tribunal’s (ET) interpretation of UK legislation can be influenced by the ECJ’s interpretation of EU law, based upon (say) a claim by a Dane or a Dutchman in their own countries. ETs then have to rewrite UK statute law to fit the ECJ interpretation.
There is also the point that Parliament may have one or two other things on its mind rather than the wholesale amendment of employment law.
Anyway, some cases and other news:
Sickness whilst on Annual Leave
In case you hadn’t guessed, Sobczyszyn -v- Skola Podstawowa w Rzeplinie is an ECJ case, emanating from Poland. Although background detail includes a Polish Teachers’ Charter which has no UK equivalent, it relates to the Working Time Directive and applies across the whole of the EU.
To be fair, it is not new law, but the case does confirm that if sickness prevents a worker from taking annual leave, he must be able to take it later (perhaps in the next holiday year) whether or not he has booked it.
(In passing, this applies only to statutory leave under the Working Time Regulations and not to contractual leave. Email me if you want me to explain the distinction).
Working Time Regulations
The short point in Gomes -v- Higher Level Care Limited is that if an ET finds well founded a claim that an employer has failed to provide rest breaks as the Regulations require, the employee is not entitled to compensation for injury for feelings. In that case, the EAT refused to increase from £1,200 the amount of compensation that the claimant had been awarded by the ET. Unhelpfully, the ET Judgment has not been published so I do not know how it reached that figure. An item below might have some relevance to this in the future.
Immigration Status and Race Discrimination
These two connected cases reached the Supreme Court. In Taiwo -v- Olaigbe and Onu -v- Akwiwu, two Nigerians employed as domestic workers, were badly treated due to their vulnerability, given their particular immigration status.
The Supreme Court decided that although their nationality clearly played a part, this was neither direct nor indirect race discrimination since immigration status is not in the list of protected characteristics in the Equality Act.
Lady Hale, in her Judgment, suggested that Parliament might wish to consider extending to ETs the power given to Courts in the Modern Slavery Act 2015 to award compensation for humiliation, fear and distress in such cases. As things, stand, the law does not enable this.
An employee at a Shropshire waste management company left his employer to start a new role at a rival company. Before leaving he emailed to himself details of 957 of his employer’s clients, including personal data in the form of contact details and purchase history.
The Information Commissioner prosecuted him under the Data Protection Act. He was fined £300 and ordered to pay £435 in victim’s surcharge and costs.
The report I read does not indicate whether any civil action was taken. I hope that his Contract of Employment contained robust restrictive covenants.
In the quarter to March 2016, ETs received 4,200 single claims (down 1% on the same period in 2015) but 25,100 multiple claims (up 56%). The latter were driven by a large airline case relating to working time and unauthorised deductions.
So far as annual figures are concerned, there were 218,096 claims brought in 2010-11 before fees were introduced. In 2014-15, the number was 61,306.
The House of Commons Justice Committee has recently reported, noting the significant drop in the number of claims. It pours scorn on the Government’s assertion that the drop in numbers is largely down to the success of the ACAS Early Conciliation Scheme (which requires a claimant to go to ACAS before he can issue his claim). Instead, they remark on the effect of Tribunal fees which they say “have had a significant adverse impact on access to justice for meritorious claims”. In other words, people with good claims have been dissuaded from taking action. They recommend that the level of fees should be substantially reduced (an unfair dismissal claim can cost £1,200 in fees).
You might not have seen much about this report in the press, coming as it did just 3 days before the Referendum vote.
It has been announced that ET Decisions are going to be published online from this autumn. If only a claimant can find the courage and money to bring a claim, there must now be a reasonable chance that an employer with something to hide would want to dispose of it, rather than risk having the details posted on the internet. We shall see.
For those not paying attention …
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As always, these newsletters are only a guide to some changes in Employment Law. They are by no means exhaustive nor an alternative to getting proper advice about your particular problem. Please call me for more help on any employment matter.
With best wishes.
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