With new and innovative working practices taking shape over the past year, and with ever-changing social and economic developments that can subsequently affect an employee’s status and rights, the landscape of employment law continually adapts to reflect these changes.
Harrison Drury’s employment law team looks at employment decisions made over the past 12 months, highlighting several relevant key cases and the implications for employers.
The changing definition of worker status
Case: Uber BV v Aslam
Worker status is a key issue in employment law at present, given the new and innovative ways of working that have developed during the coronavirus pandemic. This is increasingly blurring the lines as to how workers, who are engaged to carry out services, fit in with regards to employment rights.
We previously looked at the case against Uber, the taxi-hailing firm, in light of the Court of Appeal’s decision. Following Uber’s subsequent appeal, the Supreme Court recently handed down its decision, reasserting its approach that, to determine worker status, the true nature of the working relationship must be considered. The Supreme Court ultimately dismissed Uber’s appeal and the drivers were held to have the status of worker, together with the rights afforded to workers.
This judgment, although more impactful for the gig economy, does keep the focus on worker status. Businesses who engage individuals on a ‘self-employed’ basis, need to ensure they have considered the true working relationship and working practices to avoid worker status issues, given the added rights afforded to workers such as: holiday pay, right to national minimum wage and sick pay amongst others.
The right to equal pay
Cases: Asda Stores Ltd (Appellant) v Brierley and others
Equal pay has frequented the media recently, with cases including Asda Stores Ltd (Appellant) v Brierley and Samira Ahmed v the BBC being at the forefront.
In the Asda case, shop floor workers (mostly women) are fighting for equal pay to their male counterparts working in the warehouse. This has brought about an unusual situation: the general rule is that equal pay should be for equal work and Asda therefore argues that shop floor workers could not be compared to warehouse staff.
However, the Supreme Court has now upheld previous decisions that Asda shop floor workers can compare themselves to the higher paid warehouse workers. There is still a long way to go but these workers are now free to take further action.
These cases highlight the need for employers to be cautious with regards to equal pay. The point to stress is that the roles do not have to be identical for the legislation to apply. Employers need to be actively considering equal pay and ensure all is in order given the potential financial and reputational impact.
What can be classed as a religious belief?
Case: Casamitjana Costa v League Against Cruel Sports
Religion and/or belief has always been protected under the Equality Act. You cannot discriminate, directly or indirectly, against a person for their protected characteristic.
In the above case, the courts had to consider whether ethical veganism could be deemed a belief and be categorised as a protected characteristic. In this instance, the tribunal held that it was.
It should however be noted that this is fact sensitive, and the claimant in the case lived an extreme ethical vegan lifestyle, beyond his dietary choices, campaigning against all forms of animal exploitation. As an example, the claimant would choose to walk rather than take public transport wherever possible, to avoid accidental crashes with insects or birds. In the circumstances, the Tribunal felt this merited being held as a protected characteristic.
Although not a decision binding on the courts, employers should be aware that beliefs other than those traditional ones may in fact be held to be a protected characteristic. Employers should be taking proactive steps to mitigate any discrimination based on a belief held or indeed any other protected characteristic.
Potential conflict between UK and EU employment law after Brexit
Brexit and EU case law
A significant amount of employment law and case law is linked with the EU. Of course, now that the UK has left the EU, this has opened many questions for employers and employment lawyers alike.
As it stands, the commentary suggests that the UK will not weaken or reduce its labour and social levels of protection in place as at December 31, 2020. Despite this, the Court of Appeal and the Supreme Court have the ability to stray away from previous EU case decisions and EU labour laws, although the lower domestic courts will remain bound by retained EU law.
Case: UQ v Marclean Technologies SLU
This case displays a potential issue and looks at how domestic and higher courts may wrestle with any potential conflict between UK and EU employment law, and much remains uncertain with regards to EU case law.
It deals with the complex area of collective redundancies. The current EU law and this EU case decision conflicts with the UK Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). This throws up an interesting issue, as the lower domestic courts will not be able to stray from the EU decision but must also strive to interpret TULRCA consistently.
The Court of Appeal and higher courts will still be able to depart from this EU decision. We will, however, need to wait for the point that any such case is appealed before we can see how the higher courts will deal with this, and how far from EU law they are willing to stray.
Employers should continue to bear in mind and comply with EU legislation and case decisions as best practice, given, at the very least, this can be persuasive in the court’s considerations on a particular case.
Employers should ensure that they keep up to date with developments in employment law, particularly as we may start to see the impact of Brexit on UK employment law in the near future.
Harrison Drury’s employment law team will continue to provide updates as they arise, and always urge employers to take legal advice before taking any action which may impact their employees. If you would like to discuss any matters arising from this article, please contact our employment and regulatory team on 01772 258321.