the latest briefs.....

Check here for the very latest news on all employment issues…

Latest Brief - Week Ending 29 July 2016

Employment status of Uber drivers

A hearing is currently ongoing to decide the employment status of Uber drivers.  Uber drivers have argued that the Company is acting unlawfully by not offering rights such as holiday pay and sick pay.  Uber classifies its drivers as independent contractors or self employed.  However in June 2015 a court in the USA ruled that an Uber driver is an employee rather than an independent contractor.  The hearing is expected to last until Tuesday 26th July.  A decision in the drivers' favour is likely to have significant cost implications for Uber, so it will be interesting to see what the Tribunal decides!

Brexit challenge

The High Court has been told that Theresa May will not trigger Article 50 of the Lisbon Treaty triggering the UK's departure from the EU before the end of 2016.  The statement was made by a lawyer for the government at the opening of the first legal challenge to the process of Brexit.  Lawyers for the government conceded that due to the politically sensitive nature of the case, it was likely to be appealed up to the supreme court.  At least seven private actions have been identified to the court, each arguing that only parliament and not the prime minister has the authority to invoke article 50.  The full hearing is due to take place in October 2016. 

Fair dismissal for failure to disclose personal relationship

The Court of Appeal has upheld a Tribunal decision which found that a headteacher had been fairly dismissed for failing to disclose her relationship with a sex offender who had been convicted of making indecent images of children.  The court concluded that the school had acted reasonably in dismissing the headteacher for failing to disclose the relationship, and that the teacher had failed in her safeguarding responsibilities in unilaterally deciding that there was no need to disclose her relationship with the offender and his conviction to the school.  In light of her position, she should have realised that she should have provided this information to the school so that the governing body could decide what steps to take.

Latest Brief - Week Ending 22 July 2016

Whistleblowing dismissal automatically unfair

The EAT has held that an employee had been automatically unfairly dismissed for making protected disclosures, even though the person who made the decision to dismiss her was unaware of those disclosures.  In this case, the EAT found that as a member of staff who was responsible for the employee knew the true facts and had manipulated these facts and the decision making process, this decision could be attributed to the employer even though the decision-maker themselves was ignorant of the true facts.  
In this case, the Tribunal at first instance had relied on a case which analysed the thought processes of a decision-maker with respect to direct discrimination, and applied these principles to a whistleblowing context.  The EAT made clear that this had not been the correct approach to take, and that although there are many similarities between the discrimination and whistleblowing regimes, they are distinct, and different principles apply to each.  

Brexit update

Although the future of employment law is very uncertain and is likely to remain so for some time, there have been a few announcements made this week about the government's intentions regarding employment law and workers post-Brexit.   The Cabinet Office, Home Office and Foreign and Commonwealth Office have published a joint statement on the status of EU nationals in the UK.  

The statement made clear that the UK will remain a member of the EU until Article 50 negotiations have concluded, and there will be no changes to the status of EU nationals during this process.  Further, even when the UK does leave the EU, these departments 'fully expect that the legal status of EU nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.'David Davis, the new secretary of state for exiting the European Union, has also made clear that he has no desire to reduce the current impact of EU employment law in the UK.  While this is not binding, and may change in the future, depending on the terms of the UK's exit from the EU, it is nevertheless a useful indication of how the government visualise the employment law landscape will look in the future.  

Ban on Islamic headscarf was direct discrimination

The Advocate General has given the opinion that an employee's dismissal for wearing an Islamic headscarf at work in breach of a direct instruction, was directly discriminatory on the grounds of religion or belief.  This was on the basis that the prohibition on direct discrimination extends to manifestations of religion or belief.  It was clear that the employee had been treated less favourably than a comparator would have been, as an employee who had not chosen to manifest their religious belief by wearing a headscarf would not have been dismissed.  

The Advocate General found that the discrimination could not be defended on the basis of a 'genuine and determining occupational requirement' as it was difficult to envisage circumstances in which a blanket ban on religious apparel could be justified, other than those relating to health and safety concerns.  The employer appeared to be relying on commercial considerations to justify the ban, based on the preference of it's clients.  However, direct discrimination cannot be justified on the grounds of financial loss.  This decision almost directly contradicts a recent decision by a different Advocate General in the case of Achbita, which involved very similar facts.   The Advocate General's opinion is not binding in respect of either of these cases.  Both of the cases are due to be decided by the Court of Justice of the EU towards the end of the year.  It will be interesting to see how the current conflict in opinions is resolved.