Employment case update

There have been a lot of developments in Employment Law in the last few months with some high-profile cases on appeal and statutory changes to come in April 2019. Obviously, Brexit is looming, and this will likely have a massive impact on businesses in the UK that have come to rely on EU workers and trade with the EU. Deal or No deal, changes are afoot.

Notwithstanding Brexit there were some interesting cases decided whilst I was on maternity leave and some big decisions to come.

‘The great Equality Act bake off’ in Lee v Ashers Baking Co Ltd and others

On the 10 October 2018, the Supreme Court determined that there may be some, narrow situations where an individual can refuse to provide or operate a service if that individual believes it is in direct contravention of their religious belief. In this case it was determined that there was no discrimination against individuals who requested a cake stipulating their support of gay marriage. It was determined that the owners of Ashers were not objecting to bake a cake due to the orientation of the customers but to the message on the cake which they did not agree with

Kenneth Ball v First Essex Buses is a first instance decision and acts as a stark warning to employers not to make their minds up before reviewing all evidence. Mr Ball was subject to a drugs test and tested positive for cocaine, he denied taking drugs. The employer here did not consider matters such as Mr Balls’ behaviour when he was allegedly under the influence of drugs, Mr Balls’ service and any health conditions, nor did they take account of the following:

• Mr Ball had not washed his hands prior to the test;
• He could have been handling public money with cocaine embedded on it;
• He had undertaken a prick test for diabetes which could impact on results.

Ultimately, Mr. Ball was successful in his claim and secured just over £37,000.

In Various Claimants v WM Morrison, the Court of Appeal upheld the High Court ruling that Morrisons were liable for the wrongful acts of the rogue employee who sent employee data to a third party. It is understood leave to appeal has been sought from the Supreme Court.

Privilege may not be privileged

Usually, all communication between the Solicitor and Client is covered by legal privilege if the communication is to give or obtain legal advice. In the case of X v Y Ltd, part of the advice given by the Solicitor was for the purpose of masking discrimination and how to use a restructure to dismiss a disabled employee; it was determined that the usual legal advice privilege protection did not apply. The case of X v Y Ltd is to be heard by the Court of Appeal in October 2019.

Are the self-employed self employed?

Pimlico Plumbers and indeed Mr Smith have been in and out of the papers for several years.

In June 2018, the Supreme Court held that Mr Smith, a plumber who had signed a contracting stating he was self-employed actually qualified as having worker status. There were multiple reasons provided but mainly his contract stated he was personally to provide work for Pimlico, to wear their uniform and they exercised a degree of control over him. Worker status ultimately entitled Mr Smith to rights such as paid annual leave.

As it currently stands, Uber drivers are workers and just like in Pimlico, rights such as paid annual leave and minimum wage are applicable to the workers. It is interesting that the Courts are in essence setting aside contractual documentation and taking evidence as to the true nature of relationships.

The Court of Appeal upheld the decision of the two courts before them, what will the Supreme Court Say?

*Interestingly, Hermes has struck a deal with its workers to offer a new way of working known as “self-employed plus”.

The Court of Appeal controversially held in Royal Mencap Society v Claire Tomlinson Blake and John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home), that care workers who were sleeping-in at residential accommodation were not entitled to the national minimum wage whilst not actually working. This means that a care worker, available for work, staying at the residential accommodation is not entitled to NMW unless they are called upon. We will hear from the Supreme Court later this year.

Equal Pay

There has been major progress in two matters in the last few months:

Glasgow City Council– Action4Equality Scotland, spearheaded by my former boss Stefan Cross QC achieved success in the Court of Session some time ago. Following what I can only imagine has been months of fraught negotiations a deal has been struck for £548 million for the individuals involved in this case. If the papers are accurate, Glasgow City Council are now transferring ownership of prominent buildings in their portfolio and taking out long term loans to cover the cost.

Asda supermarket– In this case, over 15,000 workers, mostly women have suggested that as common terms and conditions were applied across departments within the store, ultimately their work on the shop floor is comparable to the work in the depot and as such the same pay rate should be applied.

The decision recently handed down dealt with the discrete preliminary point of whether the shop staff could make a comparison to the warehouse operatives, not that an equal pay case has been successful.

Whilst the roles may appear on the surface to be substantively different, when one breaks down the roles to the nuts and bolts it will likely be evident that each role has its own demands and pressures. The Court of Appeal clearly stated that it was the work undertaken not the job title which is important- watch this space!

All of the major supermarket have claims pending against them and the work will now commence by the employees to show that the work undertaken across the various job roles is of equal value. Given the recent decision in Glasgow City Council case and indeed the thousands of successful claims against English local authorities that have gone before, it would appear sensible to reach an agreement rather than engage in protracted litigation for the next couple of years.

Angela Carver is an Associate in our Employment team. For further information you can contact Angela on 0191 226 7824 or angela.carver@sintons.co.uk.