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Key employment law developments: subject access requests; gig economy; trade unions

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Summary: Our blog outlines the five key employment law developments over the last month. These include a further decision on employment status in the gig economy and recent cases on subject access requests, trade unions and religious discrimination. It also highlights other points to note this month including the publication of the final Gender Pay Gap Regulations.

Gig economy continued - Plumber was a worker and not self employed

The Court of Appeal has found that a plumber was a worker rather than a self-employed contractor. Even though the individual signed an agreement to state that there was no obligation to offer or accept work and there were other various factors indicating self-employed status, the Court found that these were outweighed by factors demonstrating worker status (particularly the existence of stringent restrictive covenants).

Why this matters? Employment status remains a hot topic and this is the latest in the line of cases to find that individuals in the gig economy are workers. The Government is currently considering employment status issues as part of the Independent Review of Employment Practices in the Modern Economy and is expected to publish its findings later this year. Our blog considers this case in more detail.

Pimlico Plumbers and anor v Smith


Refusal of time off for religious festivals was not indirect discrimination

An employer did not indirectly discriminate against an employee when it refused his request to take five weeks' consecutive leave to attend religious festivals. The employee's claim failed because his assertion that he needed to attend a series of festivals over a five-week period wasn't genuine as, in previous years, he had not attended all the festivals.

Why this matters? Given the wide application of the religion/belief regulations, this case is helpful for employers. It shows that an employee cannot simply assert a need to manifest a religious belief, as Tribunals will look behind the assertion and consider whether the employee’s evidence on the effect on him or her is actually true. This potentially enables employers to defeat indirect discrimination claims at the first hurdle.

Gareddu v London Underground Ltd


Data subject access requests - mixed findings on the scope of data subject access requests

There have been two cases this month on the scope of the data subject access request regime.

  • In Holyoake v Candy, the High Court found that a proportionate search does not necessarily require a search of employees' personal communications unless there is good reason to do so. The Court was also reluctant to allow the legal professional privilege exemption to be disapplied, finding that strong evidence of iniquity was required before this could be considered. The Court in this case did not address whether using a SAR for litigation purposes was an abuse of process, pending the judgment from the Court of Appeal considered below.
  • Following the Holyoake decision, the Court of Appeal gave a judgment on similar issues. In Dawson-Damer and others v Taylor Wessing LLP, it held that the law firm was required to disclose trust documents in its control. In doing so, it confirmed that the privilege exemption only applies to documents which are privileged under English law and that the motivation of the person seeking disclosure was not grounds for refusal. Of more comfort to data controllers, however, the Court held that the disproportionate effort exemption applies at all stages, not just to the provision of copy documents as previously thought.

Why this matters? These cases do offer some positive news for data controllers. In particular, the findings that proportionality applies throughout the search process and that a search of personal emails may be unnecessary are good news. However, the finding on motivation and on the extent of privilege are less helpful, making it easier for litigants to use the subject access regime to circumvent disclosure rules.

Holyoake v Candy & Anor

Dawson-Damer and others v Taylor Wessing LLP


Trade Unions - independent union blocked by existing agreement with sweetheart union and an attempt to bypass negotiation amounts to unlawful inducement

Even where an employer has a collective agreement with a non-independent trade union only on limited matters, there is no universal right for an independent union to be recognised. This was a recent finding by the Court of Appeal, on the basis that employees had a reasonable route to apply for the de-recognition of the “sweetheart union” and achieve the recognition of an independent union if enough employees wanted it.

Why this matters? Whilst this case highlights a potential struggle that independent union may face in obtaining recognition, it also reminds employees of their rights in challenging the recognition of existing non-independent unions. 

The Pharmacists’ Defence Association Union v Boots Management Services Ltd and anor

In another case on trade unions, an employment tribunal found that an employer’s attempts to negotiate directly with employees rather than via the recognised trade union was an unlawful inducement, contrary to trade union legislation.

Why this matters? This is one of the few cases that provides guidance on what amounts to an “unlawful inducement” and is a reminder that employers cannot simply bypass collective bargaining where the recognised union rejects initial proposals. By falling foul of its obligations, an employer can open itself to costly multiparty litigation.

Dunkley and others v Kostal UK Ltd


The Gender Pay Gap Reporting Regulations approved

The Gender Pay Gap Reporting Regulations have now been approved by Parliament. As expected they come into force on 6 April 2017. The wording reflects the final draft that was previously published earlier this year.

Why this matters? With the first snapshot date for GPGR now only a few weeks away, it is important for employers to understand how the Regulations will operate. Our recent blog and visual guide to GPGR outlines the key points.


Holiday pay - Supreme Court refuses to hear British Gas v. Lock appeal

The Supreme Court has refused to hear British Gas' appeal in this case. The Court of Appeal had decided that the Working Time Regulations can be interpreted to include results-based commission in holiday pay.

Why this matters? Whilst this signals the end of this particular holiday pay litigation, many questions remain unanswered. These include whether other types of remuneration such as voluntary overtime should be included in holiday pay, and what is the appropriate reference period. Employers should think carefully when deciding how to make changes to their holiday pay calculations to take account of this development - see our more detailed analysis.


Round up of Other developments

Employment Tribunal judgments: the online database of employment tribunal decisions is now live and can be accessed through the government website. The live database currently includes new tribunal judgments with a limited number dating back to 2015.

Compensation limits: the new compensation limits to be in force from 6 April 2017 have been published. Key changes include an increase to the limit on:

  • the compensatory award for unfair dismissal from £78,962 to £80,541; and
  • a week’s pay for the purposes of calculating statutory redundancy payments and the basic award for unfair dismissal from £479 to £489.

Both apply to dismissals where the effective date of termination is on or after 6 April 2017.

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