What happened in 2019?
Sexual harassment and confidentiality
Concerns arising from the #MeToo movement about the extent of sexual harassment and similar misconduct at work continued to be a high-profile topic in 2019, particularly concerning the legitimacy of employers using non-disclosure agreements (‘NDAs’) in this context. Among other things, the Government is expected to bring forward legislation in this area during 2020, and the Equality and Human Rights Commission is developing a statutory Code of Practice on sexual harassment.
The flow of court decisions about worker status in the context of the gig economy (and otherwise) slowed down a bit last year, but several cases remain in the pipeline including the Uber case in the Supreme Court (‘SC’). There was a surprise Employment Tribunal decision, with potentially wide-ranging ramifications, that ‘workers’ transfer under TUPE as well as traditional ‘employees’ (Dewhurst and others v (1) Revisecatch Ltd t/a Ecourier; (2) City Sprint (UK) Ltd). And the SC ruled that judges are workers for whistleblowing purposes, a judgment illustrating how European human rights law can be used to interpret domestic legislation and effectively add to it where appropriate (Gilham v Ministry of Justice).
Perhaps unsurprisingly, there has so far been no news on government plans to bring forward ‘detailed plans’ to reform the current legal framework for employment status. (These were announced back in December 2018 in the Good Work Plan, responding to the Taylor Review.)
In the long-running cases of Ali and Hextall, about shared parental pay, the Court of Appeal (‘CA’) ruled that it is not direct or indirect sex discrimination, or breach of equal pay rights, to provide enhanced pay for maternity leave and statutory pay only for shared parental leave. (These cases are, however, being appealed to the SC.)
A case referred to the European Court of Justice from Spain caused some consternation, ruling that employers must keep a record of all hours worked by their workers each day, in order to ensure compliance with the rules on maximum weekly working time and rest breaks. In light of the challenge for employers across Europe in responding, we recently produced a heatmap showing the differing levels of risk across the EU.
Gender pay gap reporting is now well established, with employers in scope of the legislation now preparing their third annual report (due in April 2020). It appears the Government has no immediate plans to build upon or reform the current gender pay gap reporting rules. There was no reference to this in the Conservative election manifesto, nor any mention of introducing publication of pay-gap data in relation to ethnicity (which was subject to consultation some time ago). However, the launch of CEO pay ratio reporting seems to be on track for 2020.
A new EU Directive designed to set a minimum level of common protection for whistleblowers was adopted last October and member states have until 17 December 2021 to implement it. Whether the UK is required to do so will depend on the outcome of the Brexit negotiations.
Meanwhile the law on whistleblowing continues to develop through case law. In Royal Mail Ltd v Jhuti, the SC ruled that a dismissing manager doesn’t have to know about an employee’s protected disclosures in order for their dismissal to be automatically unfair. The claimant’s dismissal was by reason of her protected disclosures and unfair, where the decision-maker had been manipulated by another manager. The CA also dealt with a difficult but potentially significant case about liability of overseas co-workers for whistleblowing detriment (Foreign and Commonwealth Office v Bamieh).
The correct calculation of holiday pay continues to be a thorny topic, with various issues arising in the courts during 2019. In a major NHS case, the CA confirmed that the EU Working Time Directive requires voluntary overtime to be included in holiday pay if it is sufficiently regular and settled to amount to normal remuneration. The forthcoming increase in the reference period for calculating holiday pay from 12 weeks to 52 weeks will help employers reduce the impact of seasonal variations in overtime. Another CA ruling established that holiday entitlement and pay for workers on permanent contracts should not be prorated for term-time workers, in a case highlighting the complications of working out holiday pay for ‘part-year’ staff.
What happened in the courts in 2019?
In addition to cases already mentioned above, the following judgments in 2019 were particularly noteworthy.
Last year saw the first ever SC judgment about restrictive covenants in employment contracts, in Tillman v Egon Zehnder Ltd. Although a six-month non-compete clause went too far by restricting an employee from holding a minority shareholding in a competing business, the SC ruled that the key part of the clause could be rescued by severance and enforced by the employer.
In Asda Stores Ltd v Brierley, the CA upheld the decision of the Employment Appeal Tribunal (‘EAT’) that workers in Asda’s retail stores (who were lower paid and mostly women) can compare themselves with distribution centre workers (who were higher paid and mostly men) for the purposes of claiming that their work is of equal value. This case will be going to the SC.
The CA confirmed that it is unlawful to discriminate against an employee on grounds of a perceived disability (Chief Constable of Norfolk v Coffey). On the facts, this meant that it was unlawful to discriminate against the claimant because of a mistaken belief she had a progressive condition which would make her unable to perform the full functions of her role in future.
There was a helpful EAT decision last October concerning employment lawyers advising on investigation reports (Dronsfield v University of Reading), which provided a measure of reassurance on when solicitors’ involvement in a disciplinary process might make a subsequent dismissal unfair.
The CA decided, in Kostal UK Ltd v Dunkley, that offers made directly by an employer to its employees in relation to pay and working hours did not amount to an unlawful attempt to bypass collective bargaining. Effectively, therefore, trade unions do not have a veto in this type of situation. (The union in this case, Unite, has said it is seeking permission to appeal to the SC.)