In the recent case of Samira Ahmed v BBC, the Tribunal considered whether Samira Ahmed’s work on Newswatch was like, or of equal value to, Jeremy Vine’s work on Points of View for equal pay purposes. Ms Ahmed was paid £440 per episode whilst Mr Vine was paid £3,000 per episode.  Whilst the BBC tried to defend the differentials in pay, such as Mr Vine having negotiated a deal to work exclusively for the BBC, the Tribunal found that the differential in pay was not necessary given that Mr Vine was unable to work elsewhere.  The Tribunal ultimately found that Ms Ahmed was underpaid by £700,000. (more…)

In Sethi-v- Elements Personnel Services Ltd, it was held that a temporary work agency indirectly discriminated against a practising Sikh, when it refused to keep him on its books because he would not be able to shave his beard for religious reasons.  The agency had a “no beards” policy, which had allegedly been introduced to meet the needs of its clients, which were predominantly 5 star hotels.  Whilst the Tribunal accepted that the agency wished to satisfy the needs of its clients, it held that a blanket ban on beards was not proportionate.  The agency could have accepted the Sikh worker onto its books and could have then asked specific clients on a case-by-case basis whether it could make an exception for a Sikh worker. (more…)

We reported in our last newsletter that “vegetarianism” was not considered by a Tribunal to be a protected belief. However in the recent case of Casamitjana v The League Against Cruel Sports, the Tribunal held that “ethical veganism” comprised a philosophical belief, meaning that individuals could issue discrimination claims for less favourable treatment related to a belief in “ethical veganism”.
In this case, the employee was not merely a dietary vegan but adopted a lifestyle which was fully committed to “ethical veganism”.  For example, he tried to avoid sitting on leather seats or holding leather straps, he participated in animal protection marches and he would avoid social gatherings if the food served was non-vegan.    (more…)

In Stuart Delivery Ltd v Augustine, the delivery courier undertook fixed hourly slots for a delivery company.  He worked in an agreed zone and carried out deliveries that were offered to him via an app for an agreed hourly wage.  He was not permitted to work for other delivery companies during this time.  However, the delivery courier was able to release a delivery assigned to him to other couriers in the area.  If no other courier picked up the delivery, the delivery courier was required to carry out the delivery.  Whilst the delivery company tried to argue that the delivery courier was self-employed given that he could pass the delivery to another courier, the Employment Appeal Tribunal held that this did not comprise a right of substitution.  The delivery courier had no control over whether or who would pick up a delivery that he had released and ultimately remained responsible for the delivery.  The delivery courier was therefore deemed to be a worker. (more…)

There has been a continued rise in Employment Tribunal claims.  Between July and September 2019, the number of single claims received by the Tribunal increased by 38%.

On 19 December 2019, it was announced in the Queen’s speech that the Government is proposing a new Employment Bill, which will include, amongst other things:

  • extending the period of redundancy protection from the point an employee notifies their employer of their pregnancy (whether orally or in writing) until six months after the end of their maternity leave.  Currently employees are only protected until the end of their maternity leave;
  • introducing a new right to neonatal leave and pay to support parents with sick or premature babies; and
  • making flexible working the default position unless an employer has a good reason not to do so.  The details are unclear but plans could go further than the proposals currently under consultation.  For example, employers could be required to say if flexible working is available in job adverts and publish their flexible working policies.

Watch this space to see whether any of these proposals are implemented in practice.

Vegetarianism not a Protected Belief under the Equality Act
In Conisbee V Crossley Farms and ors, the tribunal had to consider whether vegetarianism was capable of being a philosophical belief and as such capable of protection under the Equality Act 2010. The Act refers to a philosophical belief as having the following criteria: the belief must be genuinely held and not a mere opinion or viewpoint on the present state of information available; the belief must be a weighty and substantial aspect of human life and behaviour; the belief must attain a certain level of cogency, seriousness, cohesion and importance and be worth of respect in a democratic society; and the belief must be compatible with human dignity and not conflict with the fundamental rights of others. (more…)

In Raj V Capita Business Services and another, the Claimant alleged that on several occasions, while at his desk, the team leader, a woman, stood behind him and massaged his neck, shoulders and back. He brought, amongst other actions, a claim for harassment under the Equality Act.

The Employment Appeal Tribunal upheld the tribunal’s decision that while it was unwanted conduct which had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment (the first part of the test under the Act), it was neither related to sex or sexual in nature and therefore not harassment for the purposes of a claim.  In reaching its conclusion, the tribunal noted that the evidence base for a link to the Claimant’s sex was limited. (more…)

With no emergence of an EU/UK deal, as matters currently stand we are still committed to leaving the EU on 31 October, deal or no deal.  Here is our overview of the possible employment law implications if there is a no deal Brexit.

Short Term – the EU (Withdrawal) Act 2018 will convert all EU employment law into UK law.  So in the short term, nothing changes.  Existing decisions of the European Court of Justice (ECJ) remain binding on all UK courts and tribunals, with the exception of the Supreme Court.

The Government confirmed over the summer that it will extend IR35 rules to the private sector from April 2020.

IR35 is a rule applied by HMRC where an individual provides services personally to a client via a service company (intermediary) and if the intermediary did not exist, they would be considered an employee of the client – what HMRC calls a ‘disguised employee.’ Many contractors provide their services through an intermediary company and so the rule has wide application. From April 2020 it will be the client’s responsibility to assess the individual’s employment status and operate PAYE/NICs as appropriate on the fees paid to the intermediary. They will need to provide a ‘status determination statement’ confirming their IR35 determination, to both the individual and the party with which the client contracts (i.e. the intermediary or the relevant agency). (more…)

In Braine and others v The National Gallery, the Tribunal has decided that 27 “freelance” art educators at the National Gallery were “workers” during individual assignments.
The Tribunal rejected the National Gallery’s argument that the individuals were independent contractors. The individuals were offered assignments on a periodical basis and during this time they were under the control of the Gallery, required to perform their roles personally and were integrated into the organisation. For example, they undertook training with the Gallery, they were not permitted to appoint a substitute and they were required to comply with the Gallery’s teaching and presentation guidelines.
In this case the Tribunal confirmed that not every art educator would be deemed to be a “worker”. For example, if an individual carried out work at another gallery and was not subject to the same level of control and integration, they could be deemed to be self-employed.  (more…)