Employment Law has always been a progressive area yet 2017 may be remembered more for revolution than evolution.
A year of significant developments began with a raft of high-profile cases where the appellate courts demonstrated a new-found conviction when applying the established legal tests to grant worker status to nominally self-employed contractors and full employment rights to individuals previously classed as workers(1). Employment status then took centre stage when the government-backed Taylor Review (“Good work: the Taylor Review of Modern Working Practices”), prompted by piqued interest in the gig economy, recommended further reforms to employment status along with increased rights for workers (rechristened ‘dependent contractors’) and the self-employed. The result of this? Potentially seismic consequences for businesses who find themselves exposed to claims from individuals asserting rights that neither party knew they had. Employment status is back in the spotlight and it looks like an issue which businesses will increasingly find themselves needing to consider in all areas of employment practice.
So what else has happened in Employment Law so far this year? Well, pretty much every area has witnessed some change.
In discrimination, we have seen subtle tweaks to indirect discrimination in terms of why a provision, criterion or practice (PCP) puts or would put an affected group at a particular disadvantage(2) and a more radical ruling that there is no initial burden of proof on a claimant in a discrimination claim(3) , which is expected to have wider consequences.
Away from the courts, the ongoing issue of gender pay inequality continues to make the headlines whilst there is a growing acceptance that mental health in the workplace is a ticking time bomb which urgently needs addressing – even as I wrote this article an independent review was published (“Thriving at Work: the Stevenson/Farmer Review of mental health and employers”) and press attention was fixed on the 300,000 people who are understood to leave their jobs because of mental health problems each year.
Restrictive covenants continue to provide a healthy seam of litigation where the parties have the resources to enforce or challenge post-termination restraints of trade. These cases are notoriously fact-dependant, however, the Court of Appeal provided a helpful restatement of the key principles which determine enforceability in a judgment handed down in July(4) . The extent to which breaches of confidentiality by departing employees will be minimised by the forthcoming General Data Protection Regulation (GDPR) remains to be seen – the Information Commissioners Office (ICO) has the power to prosecute individuals who steal or divert company information and GDPR will make reporting such conduct compulsory.
With regard to TUPE, an Employment Appeal Tribunal (EAT) judgment handed down in March saw further gloss added to the task of determining the constitution of an organised grouping of employees in a service provision change(5), the effect of the decision being that the principal purpose of a grouping may change over time and it is insufficient to consider this when the group was formed. Several notable whistleblowing cases have also occupied the courts, with the Court of Appeal determining the meaning of the public interest test(6) and issuing another significant judgment in a case which emerged last week where it was held that there was no whistleblowing dismissal because the manager who took the decision to dismiss was ignorant of the protected disclosure (although the employee did succeed with her claim that she suffered a detriment for making a protected disclosure)(7).
However, and to avoid ignoring the elephant (or mammoth) in the room any longer, by far the most significant development in Employment Law this year must be the momentous decision by the Supreme Court on 26 July 2017 that the existing Employment Tribunal fees regime was unlawful(8), which led to the Government abolishing tribunal fees. In effect, we are back to where we were in 2013, and the anticipated consequence is expected to be a steady rise in the number of employment disputes reaching the employment tribunal, if not quite an immediate return to the number of claims in the system before fees were introduced. For employers, this means that all of the above developments have added significance, and the message is clear: now is the time to review and update those employment documents and practices which may have been overlooked during a dormant period when the risk of litigation was low.
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1. Plimlico Plumbers Ltd v Smith  EWCA Civ 51; Dewhurst v Citysprint UK Ltd ET/220512/2016; Gascoigne v Addison Lee Ltd ET/2200436/2016
2. Essop v Home Office (UK Border Agency)  UKSC 27
3. Efobi v Royal Mail Group Ltd UKEAT/023/16
4. Egon Zehnder Ltd v Tillman  EWCA Civ 1054
5. Tees Esk and Wear Valleys NHS Foundation Trust v Harland UKEAT/0173/16
6. Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed and another  EWCA Civ 979
7. Royal Mail Group Ltd v Jhuti  EWCA Civ 1632
8. R. (on the application of Unison) v Lord Chancellor  UKSC 51