Monthly highlights for December include an update on the Uber drivers and Deliveroo and their employment status and a note on some of the reforms of the Taylor review. Finally there is a note about how much has actually been paid in refunds of the Tribunal fees paid – which is a figure of some £10m.

In December, the Supreme Court considered whether advantageous treatment could be considered “unfavourable” treatment under section 15 of the Equality Act 2010 (EqA 2010) which deals with discrimination arising from disability. The issue was the calculation of the claimant’s pension. Although an enhanced pension was awarded due to ill health early retirement, it was calculated on the basis of the claimant’s actual, part-time salary. The court held that the treatment in question was the award of an enhanced pension scheme, which was not intrinsically unfavourable, and therefore the claim failed.

Uber

The Court of Appeal upheld the EAT’s decision that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998 (SI 1998/1833). A majority of the court held that, contrary to the written documentation, which contained a “high degree of fiction”, Uber drivers did not engage directly with customers as independent contractors. In reality, a contract existed between each driver and Uber’s local subsidiary, and it was not realistic to regard Uber as working “for” the drivers. Underhill LJ gave a lengthy and thought-provoking dissenting judgment, arguing that Uber’s position was neither unrealistic nor artificial. Uber has been given permission to appeal.

Judicial review

In another gig economy case, the High Court heard a judicial review challenge of a CAC decision that Deliveroo riders are not workers for the purposes of compulsory recognition under Schedule A1 of TULRCA. The Independent Workers’ Union of Great Britain (IWGB) argued, on behalf of the riders, that the right to bargain collectively is an essential right under Article 11 of the European Convention on Human Rights, and that UK law should be interpreted so as not to exclude individuals whose contracts do not technically satisfy the requirement of personal service. The court rejected the challenge, and the IWGB indicated that they would appeal.

The EAT handed down judgment in a case concerning the powers of employment tribunals. The court held that a tribunal may depart from the agreed list of issues if failure to do so would hinder its ability to determine the case in accordance with the facts and the law.

Taylor review

The government published its Good Work Plan, outlining key aspects of the Taylor Review’s recommendations which it intends to enact. The strategy is broken down into three main themes: fair and decent work; clarity for employers and workers; and fairer enforcement. The government has already started to implement some of the reforms, publishing draft legislation which increases the maximum financial penalty for an “aggravated” breach of employment law from £5,000 to £20,000; if approved, this measure will come into force on 6 April 2019. Many of the other proposed reforms do not yet have specific timescales; other draft legislation published in December suggests that April 2020 may be the targeted deadline for implementation. The Department for Business, Energy and Industrial Strategy has also announced a new naming scheme, as recommended by the Taylor Review, whereby employers who fail to pay tribunal awards will be named quarterly on a government website. This will apply to tribunal awards registered with BEIS on or after 18 December 2018.

This month, the government published a policy paper committing to protect the rights of EU citizens and their family members living in the UK by 29 March 2019, even in the event of a no-deal. The government also published its long awaited white paper on the UK’s future skills-based immigration system. Among other things, its provisions include the ending of freedom of movement, reducing net migration levels and simplifying the sponsorship regime under Tier 2 of the points-based system.

In other news

The official minutes of a meeting of the employment tribunals (England and Wales) national user group which took place on 26 September 2018 have been published. During the meeting, the increase in employment tribunal claims was highlighted, as well as the £10.6 million fee refunds that have been made. The minutes also confirm that a recruitment campaign for fee-paid judges will begin in early 2019. The government has also responded to the Women and Equalities select committee report on sexual harassment in the workplace. It announced 12 broad action points, including the introduction of a code of practice for sexual harassment at work which will be produced by the Equality and Human Rights Commission.