Employment Law Alert - December 2023

Employment status

Supreme Court finds that Deliveroo food delivery drivers do not have right to join trade union. Delivery riders for Deliveroo are engaged under "supplier agreements" as independent contractors. Given this fact, when the Independent Workers Union of Great Britain (IWGB) sought to apply to have collective bargaining recognised in respect of a group of riders this was rejected. The IWGB applied for a judicial review of this decision on the basis that Article 11 ECHR (freedom of assembly and association) requires section 296(1) TULR(C)A and the personal service obligation to be interpreted so as not to exclude the riders from union recognition. The Supreme Court was clear that the right to form a trade union only arises in the context of an employment relationship. Deciding whether there was an employment relationship for the purposes of Article 11 ECHR required careful consideration of a number of different factors. Of particular note, in the present case, the delivery riders had a clear unfettered right of substitution, were allowed to work with competitors and contracts were not terminated for riders not being available enough. The Supreme Court also confirmed that Article 11 does not give a right to compulsory collective bargaining. Aside from the collective bargaining issue the case also provides helpful commentary regarding the analysis of worker status generally. (Independent Workers Union of Great Britain v Central Arbitration Committee and anor)

Diversity, Equity & Inclusion / ESG

Scottish guidance on Equality Act protection for trans women with gender recognition certificates was lawful. Guidance issued alongside the Gender Recognition Act 2004 in Scotland stated that "where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person's sex is that of a woman". For Women Scotland sought to argue that for the purposes of the Equality Act 2010 sex means biological sex and therefore the guidance was incorrect. The Inner House of the Court of Session did not agree and made clear that there is nothing in the Equality Act 2010 currently which states that "sex" is limited to biological sex. It is worth noting that whilst this decision could be persuasive in England and Wales it is only binding in Scotland. Gender identity issues remain one to watch as we move into 2024, in particular in relation to the outcome of the judicial review of the blocking by the UK government of the Gender Recognition Reform (Scotland) Bill. It seems clear that either way gender identity issues will remain complex and challenging. (For Women Scotland Ltd v Scottish Ministers).

EU derived discrimination protections to be retained. The government has published the draft Equality Act 2010 (Amendment) Regulations 2023 which, if passed, will amend the Equality Act 2010 to retain certain discrimination protections which are derived from EU law, and otherwise would fall away by virtue of the Retained EU Law (Revocation and Reform) Act 2023. Of particular note, the Regulations: retain the "single source" comparator test for the purposes of equal pay claims; retain indirect discrimination by association; provide that the definition of disability will take into account a person's ability to participate in working life on an equal basis to other workers; confirm that less favourable treatment on account of breastfeeding constitutes direct discrimination on the grounds of sex; and include some additional protections against pregnancy or maternity related discrimination. The Regulations are intended to come into force on 1 January 2024.

Whistleblowing

Claimant could not rely on protected disclosures from settled whistleblowing claim in relation to new detriments. The EAT has held that it was an abuse of process for the Claimant, who had settled a whistleblowing detriment claim using a COT3, to bring a new claim relying on the same protected disclosures, albeit with new detriments. In 2017, the Claimant brought a whistleblowing detriment claim against the Respondent. These claims were subsequently settled under a COT3 and withdrawn and dismissed. The Claimant remained employed by the Respondent and brought new claims in May and September 2021 alleging that she had been subject to further detriments as a result of the alleged protected disclosures relating to her 2017 claim. At first instance, the ET struck out these claims on the basis that pursuant to rule 52, the Claimant was estopped from pursuing them. The Claimant appealed against this strike out decision. The EAT did not agree with the ET's analysis of the effect of rule 52 (given the new detriments, the 2021 claim could not be seen to be "substantially the same complaint"), but the EAT did find that the new claims were an abuse of process because in entering into the COT3 the Claimant had settled the "issues" from the 2017 claim which included the assessment of the Claimant's alleged protected disclosures. (Ajaz v Homerton University Hospital NHS Foundation Trust)

Employee Relations

Redundancy appeal could not correct lack of workforce consultation. The EAT has overturned the decision of the ET, finding that in circumstances where there was no workforce consultation at the formative stage of a redundancy exercise, the Claimant's dismissal was unfair. The Claimant worked for the Respondent as a recruitment consultant until he was made redundant. The decision to reduce the recruitment team was triggered by a reduced need for recruitment services following the Covid-19 pandemic. The Claimant was scored alongside the rest of the recruitment team and was one of two employees made redundant. Although the respondent held three meetings with the Claimant in relation to the redundancies, at no point was he aware of his selection score, and how this compared to others in the pool. The Claimant appealed against the decision, but his appeal was unsuccessful. The ET upheld the Claimant's unfair dismissal claim finding that the Claimant had not shown that his score should have been higher, and that this information had been shared with the Claimant as part of the appeal. The EAT took a different view. It held that although what is reasonable in a redundancy process will vary depending on the employer and the circumstances giving rise to the redundancy, there are certain key requirements, which include that an employer will seek to avoid dismissals by engaging in consultation with employees. In this case the EAT found that there were no good reasons for the Respondent failing to engage in meaningful consultation. Although the decision highlights that there is no "one size fits all" approach when it comes to redundancy processes, employers would be advised to give careful consideration to the opportunities which they are giving employees to meaningfully engage with planned redundancy processes. (Haycocks v ADP RPO)

Litigation procedure

New Practice Direction on recording of employment tribunal hearings. The Presidents of the Employment Tribunal have published a new Practice Direction on the recording and transcription of employment tribunal proceedings, together with Presidential Guidance. With effect from 20 November 2023, HMCTS will make audio recordings of almost all employment tribunal hearings (the two notable exceptions are hearing in national security proceedings, and judicial mediation hearings) provided that there is the technical facility to do so, and provided that any recording can be securely retained. In practice this means that hearings held fully or partly remotely using the BT MeetMe conferencing service, Cloud Video Platform, or Video Hearings Service will be recorded but it may take some time before recording in person hearings becomes the norm. 

Other interesting things

Government publishes response to consultation on holiday pay and TUPE post-Brexit. On 8 November 2023 the government published its response to the Retained EU Employment Law consultation which proposed changes to the calculation of annual leave and holiday pay (including for part-year and irregular hours workers following Harpur Trust v Brazel)  and the record-keeping requirements under the Working Time Regulations as well as the consultation requirements under TUPE. The response confirms that the government intends to make the following changes:

• "Rolled-up" holiday pay will be introduced which will allow irregular hours and part-year workers to receive an enhancement to their regular pay instead of  being paid when they take annual leave;

• Annual leave for irregular hours or part-year workers will be calculated using a new accrual method of 12.07% of hours worked during the relevant pay period;

• Businesses will no longer be required to keep a complete record of workers' daily working hours - adequate proportionate records given workplace and working patterns will suffice;

• Businesses with fewer than 50 employees will be permitted to consult directly with employees, rather than electing employee representatives on a TUPE transfer; and

• Businesses of any size will be permitted to consult directly with employees, rather than electing employee representatives where a transfer of fewer than ten employees is proposed.

Notably the government has not consolidated "basic" and "additional" annual leave requirements. Alongside the consultation response the draft Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 were laid before Parliament. If approved it is anticipated the draft regulations will come into force on 1 January 2024.