Key employment law developments: whistleblowing; holiday pay; shared parental leave

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Summary: Our blog outlines five key employment law developments over the last month, with cases covering whistleblowing, overseas employees, disability-related discrimination, holiday carry-over and enhanced pay during shared parental leave. We also outline other points of note this month including preparations for the General Data Protection Regulation and the Taylor Report into the gig economy.

Whistleblowing: employer’s belief is irrelevant

The Court of Appeal has confirmed it is irrelevant whether an employer genuinely believes that an employee has not made a protected disclosure. Under whistleblowing legislation, the test for whether the requirements are met is an objective one.

The employee in this case made complaints which the employer did not consider to be protected. The employee was dismissed on the basis that his claims were vexatious and part of a campaign against a colleague.

The Court of Appeal held that the employee’s complaints were the reason (or the principal reason) for dismissal. The complaints did in fact meet the requirements for a protected disclosure. The fact that the employer genuinely believed otherwise was irrelevant. The dismissal was therefore automatically unfair.

Why this matters?          

Whistleblowing law changed in 2013 so that a disclosure no longer needs to be made ‘in good faith’ in order to be protected. Instead an employee must have a reasonable belief that their disclosure is made in the public interest. This case related to events prior to the change in law, but serves as a reminder that dismissing an employee for making complaints can be high-risk. The Court of Appeal acknowledged the potentially heavy burden of its decision on employers, but commented that Parliament has deliberately conferred a high level of protection on whistleblowers.

Beatt v Croydon Health Services NHS Trust


Territorial scope of UK employment law: impact of choice of law in employment contract

The EAT has reiterated that the test for whether an overseas employee can bring claims in the UK Employment Tribunal is an objective one, which involves considering whether the employee has a stronger connection to Great Britain or to another jurisdiction.

In this case, the employer’s argument that its use of an employment contract subject to English law was ‘a matter of convenience’ should not have been accepted by the Tribunal. The parties had entered into a binding agreement which stated that it was subject to English law. This was a relevant factor to be taken into account when considering the nature of the employee’s connection to Great Britain.

Interestingly, the EAT said that the Tribunal was entitled to accept the employer’s argument that managing the employee’s redundancy consultation from the UK should be seen in context, allowing for the fact that the overseas business was newly founded without local HR support.

Why this matters?     

The case highlights that employers should not automatically issue their usual templates for employees engaged overseas, but instead consider what law should apply to the contract of employment. If the employment contract states that English law applies, this will be relevant when considering whether the employee has a sufficiently close connection to the UK to bring an Employment Tribunal claim here.

Green v SIG Trading Ltd


Redundancy following disability-related absence was not discrimination

The EAT has considered the case of an employee who was made redundant after returning to work following a period of disability-related absence. Whilst the employer had realised during the claimant’s absence that it could manage without him, this did not mean he was dismissed because of his absence. His absence merely formed part of the context. The branch office managed by the claimant was not as profitable as desired and the employer had been looking for cost savings for some time. It considered that the claimant’s duties could be absorbed by others.

Why this matters:

Whilst the case is helpful to employers, it should be approached with caution. The employer was able to demonstrate that it had considered the possibility of the claimant’s redundancy very early on in his absence, which was for a relatively short period of around two months. Each case will ultimately turn on its facts.

Charlesworth v Dransfields Engineering Services Ltd


Right to paid annual leave carries over until the worker has opportunity to exercise it

The Advocate General has given an opinion in a case involving an individual who worked as a commission-only salesman. He received no salary, holiday pay or sick pay. After he was dismissed, the salesman claimed unpaid holiday pay for the current and previous holiday years.

The Advocate General emphasised the importance of the right to paid annual leave. The employee had not been prevented from taking holiday by reasons such as sickness absence. Instead, the fact that the employer refused to pay him during periods of leave was sufficient for the worker to claim that he had been prevented from exercising his right to paid leave. His right to paid leave therefore continued to accrue and was carried over until he could exercise this right, or until the termination of his appointment.

Why this matters:

This case is likely to have a serious impact on the gig economy where a line of recent cases has found a number of individuals to be workers rather than self-employed. If these workers have not taken leave because it would have been unpaid, their employers may find themselves faced with very expensive holiday pay claims. The ECJ’s judgment is therefore keenly awaited.  

King v The Sash Window Workshop Ltd and another


Failure to enhance pay during shared parental leave may be discriminatory where enhanced maternity pay is offered

An Employment Tribunal has held that a male employee taking shared parental leave (“SPL”) could compare himself to a female employee taking maternity leave. This meant that failure to provide enhanced pay during SPL where enhanced maternity pay was offered amounted to direct sex discrimination.

In considering whether a man has been treated less favourably than a woman, the Equality Act provides that no account is taken of special treatment afforded to women in connection with pregnancy or childbirth. However, the ET held that this provision did not apply here because the male employee was seeking to take SPL to carry out a role that could equally be carried out by a man or woman.

Why this matters?

This decision directly conflicts with a previous ET decision in the case of Hextall v Chief Constable of Leicestershire Police. In Hextall it was held that a man taking SPL could only compare himself with a woman taking SPL, not a woman on maternity leave. Both of these ET decisions are being appealed and it is hoped that the EAT will give clarity on the question of the correct comparator in such cases.

Ali v Capita Customer Management Ltd


Round up of other developments

Gig economy: We reported last month that the Work and Pensions Committee has published a report into the gig economy, calling for a presumption of worker status, and recommending that the incoming government commit to equalising national insurance contributions for employees and the self-employed. Meanwhile, the Law Society has submitted its recommendations to the Taylor Review into employment law practices and, in particular, the implications of modern business models on employment status. The Review was originally due to be published in June, however the release date has been pushed back until July.

In a further development in the ongoing saga of the gig economy, the Independent Workers Union of Great Britain (IWGB) is supporting a worker-status claim against CitySprint. The claim is brought on behalf of the same individual who successfully claimed worker-status against Excel prior to its acquisition by CitySprint.

Data Protection Regulation: the Information Commissioner’s Office has updated its “12 steps to take now” guidance and its self-assessment toolkit to help business assess their progress in preparing for the General Data Protection Regulation (GDPR) which will apply from 25 May 2018. You can read about the key issue of consent in our blog, GDPR: will consent ever be an option for handling employee data?

Brexit: With Brexit talks now underway, the Government has published a policy paper which sets out its proposals for continued residence for EU citizens living in the UK after the UK’s exit from the EU. A copy of the policy paper can be read here.

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