As with all years in the world of employment law, 2018 was certainly not a disappointment (although England not making it to the World Cup final was somewhat of a disappointment!) with some important and game changing developments that every employer needs to be aware of.
EMPLOYMENT STATUS AND THE GIG ECONOMY
This continued to be a hot topic in employment law in 2018 and will continue to be in 2019. There were numerous cases decided involving a number of high profile employers including Addison Lee, Uber and Deliveroo but the Supreme Court in the case of Pimlico Plumbers Ltd v Smith is one of the most important.
In this case, Mr Smith, a plumbing and heating engineer, wore a uniform, drove a branded van, had company ID, followed instructions from a central office and had to work 40 hours per week, that were described as his ‘normal working hours’. He was treated as a self-employed contractor as he was responsible for his own tax and national insurance, used his own tools and paid his own insurance. However, the Supreme Court concluded that he was a worker (for the purposes of employment rights such as holiday pay and statutory sick pay) and made particular reference to his integration within the business, the level of control exerted over him and the requirement for him to personally perform his duties (rather than being able to appoint someone else from outside the company). The use of self-employed contractors and the gig economy in general continue to be under the microscope when determining employment status, making it more important than ever to assess your workforce and ensure that you have the correct contractual documents in place.
HARASSMENT AND VICTIMISATION
In a case affectionately known as the “ginger pikey” case, the Employment Appeals Tribunal (EAT) in Evans v Xactly concluded that no harassment because of a disability or race under the Equality Act 2010 had taken place following allegations that an employee’s colleagues had on several occasions called him a “fat ginger pikey”. The claims were brought on the grounds that the employee was sensitive about his weight and had strong links with the traveller community. The EAT confirmed that whilst the comments were potential discriminatory, it had to assess the context in which the remarks were made and found that the office culture was one of “good natured jibing and teasing”. However, the defence of “It’s only office banter” is rarely successful for employers and therefore this case highlights the importance of training for all staff in discrimination awareness and anti-harassment and bullying in addition to comprehensive policies.
SHARED PARENTAL LEAVE
The protection provided for employees by family friendly rights in the workplace is always a hot topic but the case of Capita v Ali was important as the EAT confirmed that a company’s decision not to enhance shared parental leave pay in line with enhanced maternity pay did not amount to direct sex discrimination as it was in line with the permitted special treatment afforded to women under the Equality Act 2010 in connection with pregnancy or childbirth.
From 6th April 2018 the way in which termination payments are taxed changed and means that it is no longer possible to make a tax free payment equivalent to a payment in lieu of notice even in situations where there was no contractual right to make the payment in that way. This has a significant effect on the exit packages offered to employees under Settlement Agreements and is something that must be considered when making offers and discussing any financial exit packages with employees.
RIGHT TO BE ACCOMPANIED
It is well established that an employee has a right to be accompanied to a disciplinary or grievance meeting by a workplace colleague or trade union representative and that if their chosen companion is not available on the proposed date, an employee has the right to request that the meeting be postponed by 5 working days. The case of Talon Engineering v Smith is a cautionary tale for all employers as the EAT confirmed that the employer’s decision to refuse the employee’s request to postpone a meeting by 12 days due to the unavailability of her chosen trade union representative was unreasonable as the extension requested was short and the employee in question had long service and was not simply trying to “de-rail” the process. Employers should ensure therefore that any requests for postponement are given due consideration taking into account al the circumstances and should ensure that their policies reflect this approach.
2018 also saw guidance issued for employers in relation to the following areas:
Guidance on employment references from ACAS, including what a reference must include, whether or not to provide a reference and whether an employer can give a bad reference.
Guidance on Dress Codes and Sex Discrimination published by The Government Equalities Offices, reminds employers that dress code policies for men and women do not have to be identical but the standards imposed should be equivalent. In the wake of the #MeToo movement, it is more important than ever that employers are clear about what is and is not acceptable.
Guidance on Religion and Belief from ACAS which includes practical guidance in relation to talking about religion at work, food (and fasting) and washing/changing rooms.
THE ELEPHANT IN THE ROOM – GDPR
A review of 2018 wouldn’t be complete without mention of the new General Data Protection Regulation (GDPR) and the Data Protection Act 2018. If you haven’t already considered what information and personal data you hold about your staff and issued them with an appropriate privacy notice, you need to act now to avoid the fines and penalties for non-compliance that GDPR introduced.
For more information on any of the above or to discuss your employment needs generally, please contact Julie Edmonds, Senior Associate Solicitor, by email: firstname.lastname@example.org, by telephone on 0207 644 7286 or contact her on LinkedIn.