January Newsletter
Welcome
Happy New Year to you all! This employment law update has, in the past, been described as both “mildly amusing” and “reasonably informative” – we’ll take that. But unfortunately, the description “sporadic” has crept into the picture and, in an effort to address that, it is our new year’s resolution to ensure this monthly newsletter genuinely is ‘monthly’.
So, we kick off 2019 with feet on the ground, running, wheels spinning and any number of other mixed metaphors you care to apply. Below we bring you up-to-date with the latest Government changes in workers’ rights, an article on the Jess Varnish case and an illuminating case on justification for age discrimination. Before that, each Friday on my LinkedIn account I host an Employment Headline of the Week competition (by which I mean I judge it and publish it). Christmas brings with it the Year’s best headlines (I know, it’s all very exciting so please feel free to join the fun if you don’t already do so). 2018’s results were:
The utterly bizarre runner up from the Mirror in April: “‘Walter Mitty’ doctor struck off for using false identities now runs NUDE female-only fitness classes“.
But the winner is the Telegraph’s pithy headline from March which provides all the information you need on the story (no need to click the link): “Waiter Fired For Being Rude Says He Was Just Being French“
Join me in 2019 for more. In the meantime, the news:
Top cyclist’s dispute could transform workers’ rights
Our firm has an interest in elite cycling through a sponsorship agreement with Olympic gold medallist Dani King, so the high-profile legal action by the Olympic cyclist Jess Varnish inevitably caught the eye. It could have ground-breaking implications for many workplaces. This particular case could not only ‘change the landscape’ of how thousands of amateur sportsmen and women are treated by their clubs or governing bodies but impact on other kinds of work too.
Varnish, who was on British Cycling’s top ‘podium programme’ for selection, is attempting to sue the organisation for sex discrimination and unfair dismissal.
Before she can do that, a central issue the tribunal must decide is whether the former European and World Cup team sprint champion was an ‘employee’, a not-directly-employed ‘worker’ or, as British Cycling claim, a fully self-employed individual.
These are important status distinctions that have informed the ‘gig’ economy cases we have seen recently involving Uber taxi drivers, City Sprint couriers, Pimlico plumbers, Deliveroo cyclists and others.
For the most part, the individuals in these cases have successfully established that they are not self-employed and are at least ‘workers’ if not ‘employees’.
Now, depending on the judge’s ruling, the Varnish outcome could strengthen the rights of even more people who depend economically on a relationship with an organisation, whether that is a sport club, governing body or something else. UK Sport, for example, has sponsorship arrangements with around 1,100 athletes.
They and many others in the gig economy could be afforded rights to make unfair dismissal or discrimination claims, be paid minimum wages and holiday leave, and enjoy protection against detrimental treatment for whistleblowing.
The ruling is expected in January 2019 and is likely to be appealed by whichever side loses.
The involvement of eminent barristers in the Jess Varnish case is rare in the Employment Tribunal and is a clear sign that the parties expect this dispute to make its way to the higher courts, because of the enormous implications for other athletes and, indeed, many other ‘gig’ economy workers.
I have written a more in-depth article on this subject which can be found here.
Workers’ rights – All change
The Government has announced a series of changes to improve the protection afforded to agency workers, those on zero-hours contracts and with “atypical” working arrangements, taking forwards 51 of the 53 recommendations made by the Taylor Review last year.
The first tranche of changes is scheduled for 6 April 2020. So, what changes are we expecting to see?
First and foremost, the ‘Swedish Derogation’, contained in the Agency Worker Regulations and often referred to as a ‘loophole’, will be repealed. It currently excludes agency workers from the right to the same pay as directly-recruited workers if they have a contract of employment with the agency (rather than the end-user). This means they will no longer be allowed to be employed on cheaper rates than their permanent counterparts.
Further key changes we will see are:
- workers will have the right to sick leave, sick pay and other forms of paid leave, all of which will have to be set out in the written statement;
- the holiday pay reference period will be extended from 12 to 52 weeks meaning those in seasonal or atypical roles will be calculated over a longer time period;
- the employment tribunal fine for employers who demonstrate malice, spite or gross oversight (aggravating conduct) in breaching employment rights will quadruple from £5,000 to £20,000;
- the government believes that high levels of employee engagement improve organisational performance and productivity, and lead to more fulfilling work. It intends to legislate to lower the threshold required for a request to set up information and consultation arrangements from 10% to 2% of employees, subject to the existing minimum of 15 employees; and
- there will be a ban on employers making deductions from staff tips.
The Government also intends to legislate to clarify the test of employment status on which eligibility for worker rights depends in order to reflect modern working relationships.
Justification for age discrimination
This is a useful case applicable to any situation where the employer is making a decision which may impact on workers due to their age.
In principle, discrimination against younger or older workers may be justifiable where an employer can prove that the provision, criterion or practice put in place was in pursuit of a legitimate aim. However, the Court of Appeal held in the recent case of The Lord Chancellor v McCloud that the employer will need to be able to point to real evidence for the imposition/change and not merely a feeling that it was the right thing to do to protect the worker in the circumstances i.e. for the financial reasons of the individuals.
This particular appeal involved (as part of a pension reform) all serving judges being transferred to a new pension scheme. However, the scheme was considered to be significantly less favourable to those judges who were within 10 years of the normal pension age. The Government allowed those older judges to remain on the old pension scheme rules containing more generous terms. In doing so, the younger judges were discriminated against by being treated less favourably. In principle, discrimination against younger workers can be justified if e.g. there are financial difficulties for older, but the Court held that the ‘justification’ would have to be supported by evidence.
In short, it is not enough for an employer to rely on a general belief (or what it might consider to be ‘common-sense’). It has to provide evidence in support.
And finally …
The first 2019 Employment Headline of the Week comes courtesy of the Mail. It’s a headline that is both packed with extraordinary information and leaves a lot of questions unanswered. I’d like to wish you good luck if you’re brave enough to click the link:
Until next time, here’s to keeping those 2019 resolutions!
