Employment Highlights – November 2017

Highlights this month were outstanding holiday pay for those wrongly classified as self-employed or contractors and how far back they can claim; the employment status of Uber drivers and Deliveroo riders; unfair dismissal and confirmation that the tribunal fees have now been repaid.
Holiday pay and working time

In a decision with potentially huge ramifications for misclassified workers, the ECJ has held that workers who are wrongly told they have no right to paid holiday may carry their holiday rights over indefinitely, and be paid in lieu, on termination, for any untaken holiday over their entire period of employment.  In another working time case, the ECJ has followed the Advocate General’s opinion that a weekly rest period may be given on any day during the seven-day reference period, and does not always have to be granted on the seventh day following six consecutive working days.

Employment status

The EAT has upheld an employment tribunal’s decision that Uber drivers were workers for working time, minimum wage and other purposes. Although uncontroversial from a strict legal perspective, it will be of significant interest to practitioners advising putative workers and employers in the gig economy.

Meanwhile, the CAC has decided that Deliveroo riders are not workers and are therefore ineligible for trade union recognition. The “almost unfettered right of substitution” (which had been occasionally used in practice), meant there was no personal service obligation.

In related news, HM Treasury has recently considered extending the IR35 reforms introduced in the public sector in April 2017 to the private sector, outsourced workers in the public sector are claiming the right to collectively bargain with their “de facto” employer, and the House of Commons Work and Pensions and BEIS committees have published a report (along with draft legislation) encouraging the government to implement the Taylor Review recommendations.

 Unfair dismissal

The EAT has held that an employer could not rely on illegality as a fair reason for dismissal after the employee, who was entitled to work in the UK, failed to produce documents to prove it. The case was remitted to decide whether the dismissal was fair for some other substantial reason. The EAT has also held that an employer breached the implied term of mutual trust and confidence when they did not tell an employee the real reason for their dismissal.  Employers should not mislead employees, irrespective of their good intentions.

Discrimination by statutory bodies

The Supreme Court has held that an employment tribunal has  jurisdiction to hear a doctor’s discrimination claims against the General Medical Council (GMC). As the claim related to the merits of the decision (as opposed to its legality or the way in which the decision was reached), a tribunal provided the natural and obvious remedy. The Supreme Court also held that a Police Misconduct Panel does not have judicial immunity against a discrimination claim by a police officer. The decision has implications for other statutory bodies charged with hearing cases of professional misconduct.

Discrimination in a religious context. An Advocate General has given an opinion that religious organisations cannot unilaterally determine their own occupational requirements.  The EAT has held that a church minister’s dismissal because of marital difficulties could amount to direct discrimination because of marriage. The case was remitted for substantive determination.

An employment tribunal has dismissed religious discrimination claims brought by a Christian non-executive director who publicly opposed adoption by same-sex couples. He had not been removed because of his belief or his expression of it, but because he had repeatedly spoken to the media in a manner that fell short of the expected standard.


The ECJ has held that a non-EU national may benefit from a derived right of residence in the Member State in which an EU citizen family member resides, even if the EU citizen acquires the nationality of the host Member State in addition to their nationality of origin. The decision challenges the UK’s position of refusing to recognise the free movement rights of EU citizens who have acquired British citizenship and their family members.

In other news

the government has rolled out the tribunal fees refund scheme in full, Acas has published guidance on stress at work, pregnancy and maternity discriminationand  sexual harassment at work,  and has issued further research on its early conciliation service. The UK government has published further details of its proposed new settled status scheme for EU citizens, along with outlining plans to double the number of Tier 1 (Exceptional Talent) visas offered.

A charity employee has been fined for unlawfully obtaining personal data from his employer, shortly before the ICO published new GDPR guidance for small businesses.

The Hampton-Alexander Review has published a supplementary report on gender balance in FTSE leadership and charities have been urged to do more to promote board diversity. Research has revealed that gender bias begins early in recruitment, while Unison has published a model trans equality policy and the Justice Select Committee has published a report which describes the DBS criminal record system as unfairly prejudicial to young offenders.

Finally, in the Autumn statement announced on 21 November, the government proposes to increase the national minimum wage, the tax-free personal allowance, and the higher rate tax threshold. The government will also publish a discussion paper as part of its response to the Taylor Review.

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