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Employment Law & HR Update - January 2019

Employment Law & HR Update - January 2019

In the team's first update of 2019, updates on: disability discrimination, Uber workers, age discrimination, employment documents and collective bargaining.

Is the award of an enhanced pension on medical retirement “unfavourable treatment” under s.15 of the Equality Act 2010, if the pension is calculated from an employee's part-time salary and they only work part-time as a result of a disability?

No, according to the Supreme Court in Williams – v – Trustees of Swansea University Pension.

The claimant was disabled and suffered from Tourette’s syndrome amongst other conditions. Under the Equality Act 2010, his employer had already made a reasonable adjustment by reducing his hours to part-time.

Mr Williams then applied for ill-health retirement, which he was granted at age 38. His pension scheme entitled him to a lump sum and an annuity. This was payable immediately with no reductions made for an early draw down.

The pension amount was based upon the salary which the claimant was earning at the time he retired. This was was a part-time salary: at the time he retired he was only working part-time hours.

However, the claimant argued that this amounted to disability discrimination because he only worked part-time because of his disability. If he had not been disabled, he would have been earning a full-time salary and he argued that his pension should therefore be based upon what would have been his salary if he had been working full-time.

The Employment Tribunal agreed with the claimant, but the Employment Appeal Tribunal (EAT) and Court of Appeal (CoA) did not.

The Supreme Court agreed with the CoA and said that the “treatment” in question (that is, the treatment to which the claimant had been subjected) was the immediate award to him of a pension at the age of 38. If the claimant had not been disabled, he would not have been entitled at all to a pension at that time. Therefore, he had not been subjected to unfavourable treatment because of his disability, but rather to more favourable treatment than he would otherwise have received.

Are Uber drivers properly regarded as ‘workers’ or self-employed contractors? An update.

They are workers according to the Court of Appeal (CoA) in Uber BV – v – Aslam & others. Therefore they are entitled to rights such as paid holiday, which would not apply to them if they were self-employed.  

The key question in relation to whether the drivers had worker status was whether, as the drivers argued, it is Uber that contracts with passengers to provide driving services (which the drivers then perform for Uber) or whether Uber only acts as an intermediary, by providing booking and payment services, and the drivers contract with (and drive) the passengers as independent contractors.

The terms of the drivers’ written contracts with Uber state that they are independent contractors, but is the reality of the relationship between Uber and the drivers something different?

The CoA (by a majority decision) decided that the reality was indeed different and that the drivers were workers of Uber.  

However, the CoA has given Uber permission to appeal to the Supreme Court… so watch this space.

Is the protection of older workers a legitimate aim which justifies discrimination against younger workers?

Not in this case, according to the Court of Appeal (CoA) in The Lord Chancellor – v McCloud.

The case affected two groups of claimants, judges and firefighters, in relation to recent government pension reforms.

In both cases, the government allowed those members of the old pension scheme who were closest to retirement to remain as scheme members. The younger members were transferred to a new and less generous scheme.

The question was whether this less favourable treatment on grounds of age was justified, because if it was not, then it was unlawful.  To be justified, the treatment would need to be a proportionate means of achieving a legitimate aim. 

The CoA said that a mere “visceral instinct” that “it felt right” to protect older workers was not enough to justify the age discrimination. In principle, the discrimination against younger workers could be justified if there are financial difficulties for older workers, as a result of them having less time to prepare for the impact of the changes. However, any justification would have to be demonstrated by evidence, as otherwise it could not be used as a defence against a claim of age discrimination.

Does an employee have a right to a statement of employment particulars when employed for less than two months?

Yes, according to the Employment Appeal Tribunal (EAT) in Stefanko and others – v – Maritime Hotel Ltd, if the employee has worked continuously for their employer for at least one month.

The claimants were all employed as waiting staff by Maritime Hotel Limited and the majority of the staff had only been employed there for a few months.

One claimant, Ms Woronowicz, had only been employed for six weeks when she was dismissed and she successfully brought a claim for automatic unfair dismissal. She also complained that she had not been provided with either a payslip or a written statement of employment particulars.

An employer has to provide its employee with a written statement of employment particulars within two months of the start of their employment. The Employment Tribunal can make an additional award to the employee under s.38 of the Employment Act 2002 if this obligation is not met and the employee successfully brings some other claim, such as unfair dismissal.

The Employment Tribunal in this case, however, declined to make the award under s.38 of the Employment Act, and this was because Ms Woronowicz did not have two months’ continuous employment.

The EAT disagreed with this and overturned the Tribunals’ decision.

S.2(6) of the Employment Rights Act 1996 states that the right to a written statement of employment particulars exists even if a person’s employment ends before two months. Therefore, it followed that Ms Woronowicz was entitled to such a statement and was entitled to the additional award.

Under the current law, there is an exception for employees who work for less than one month and if Ms Woronowicz had had less than one month’s employment, she would not have been entitled to the additional award.

However, this exception is due to be repealed by The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018. From 6 April 2020, every new employee will have the right to a written statement of employment particulars starting from the first day of their employment.

Does Article 11 of the European Convention on Human Rights (ECHR) extend the statutory right to collective bargaining, so that it applies to people who don’t have a contractual obligation to perform work personally?

No, decided the High Court in R (on the application of the Independent Workers Union of Great Britain) (IWGB) – v – Central Arbitration Committee (CAC).

The CAC had decided that Deliveroo riders were not workers under the definition found in the Trade Union and Labour Relations (Consolidation) Act TULR(C)A, as they did not have a contractual obligation to personally perform their work, but could engage a substitute to carry out their work for them. The fact that they were not workers meant that the right to have a union carry out collective bargaining on their behalf did not apply to them. 

IWGB brought a judicial review to the High Court, arguing that the Court should overturn the CAC’s decision. They argued that under Article 11 of the ECHR the riders had the human right to have a union carry out collective bargaining on their behalf. Therefore, the relevant section of TULR(C)A and the “personal service” element of that section had to be interpreted, so that the statutory right to collective bargaining applied to the riders even though they were not workers.

The High Court dismissed the judicial review and upheld the CAC’s decision on two bases:

  • the Court disagreed that Article 11 applied to this case. ECHR case law involved the right to collectively bargain within an employment relationship and as the riders were not in an employment relationship with Deliveroo, Article 11 did not apply to them;
  • even if Article 11 did apply to the riders, restricting statutory collective bargaining rights to workers with a contractual obligation of personal service was permitted under Article 11(2) ECHR. Therefore it was not a breach of Article 11 that the collective bargaining right did not apply to the riders. The restriction was proportionate and provided a fair balance between the differing interests.

For more information on how these recent cases affect your business, contact Burnetts' Employment Law & HR team here.

About the author

Published: Monday 14th January 2019
Categorised: Commercial Client, Employment, HR, Legal Services in Newcastle, Penrith, West Cumbria

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