November Employment Law Highlights

Following the Prime Minister’s announcement last month that notice to leave the EU under Article 50 will be given  by the end of March 2017, the High Court held that the government does not have power to do this under the Royal Prerogative. It therefore seems that an Act of Parliament will be required, although the government has no plans to introduce a bill before the Supreme Court rules on the appeal, which is due to be heard between  5 and  8 December, with judgment expected in the New Year. 

The Court of Appeal in Northern Ireland upheld the “gay cake” decision on appeal, holding that a bakery had directly discriminated against a gay customer on the grounds of sexual orientation (but not his sexual orientation) by refusing to bake a cake with the caption “Support Gay Marriage”.

In other big news this month   an employment tribunal held that Uber drivers are workers under the Working Time Regulations 1998, National Minimum Wage Act 1998, and ERA 1996. The judgment will be of significant interest to practitioners advising putative workers and employers in the gig economy. Following this case, the Independent Workers Union of Great Britain (IWGB) has threatened legal action against Deliveroo if it refuses their riders’ requests for union recognition and employment rights.

The government has finally responded to the Justice Committee review of courts and tribunal fees, published in June 2016. The MoJ declined to respond to the Committee’s recommendations on employment tribunal fees at this stage as it is finalising the post-implementation review of tribunal fees, which will be published “in due course”. Unison’s judicial review challenge against the introduction of tribunal fees is now due to be heard by the Supreme Court on 27 and 28 March 2017. It  seems highly unlikely that any serious progress will be made in considering the Justice Committee’s recommendations until judgment is handed down.

The government also announced new protection for whistleblowers applying for jobs in the children’s social care sector, which will be included in the Children and Social Work Bill 2016-17. HMRC published a consultation on draft regulations to prevent employers of illegal workers from claiming NICs employment allowance for a year and BEIS launched an independent review into electronic balloting for trade unions under section 4 of the Trade Union Act 2016. The final report will be published by the end of 2017. Acas has published guidance on marriage and civil partnership discrimination in the workplace.

In disability-related news, the National Autistic Society published a report  calling on employers to curb an autism employment gap, Macmillan published research showing one in five people diagnosed with cancer suffer discrimination at work, and the Department of Health has launched a consultation on work, health and disability.

Finally, in the Autumn statement announced on 23 November, the government has decided to remove the tax relief associated with employee shareholder status with effect from 1 December 2016, and, from April 2017, to restrict tax relief to certain benefits, including pension and childcare benefits, provided under a salary sacrifice scheme.


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