Tue 03 Dec 2019

2019 Employment Law Review of the Year

Our annual look at what has made the employment law headlines in the past year.


January kicked off to some extent in the way the rest of the year then continued with a focus on pay, or to be more precise, pay differentials.  New legislation in the form of The Companies (Miscellaneous Reporting) Regulations 2018 came into force introducing, amongst other things, mandatory reporting of the ratios between CEO and average staff pay for listed companies. In addition, the consultation closed on ethnic pay gap reporting.  We still have to see legislation arising from the latter, but it is very likely to be progressed in the next couple of years.

Another big topic this year has been AI - but it didn't start well for the Henn-na Hotel who had to lay off half its robotic staff following complaints from guests.  Errors included robotic bedside butlers waking up guests thinking their snoring was a command - the Faulty Towers of the 21st century.


In February, the Court of Appeal, in the case of Agoreyo v London Borough of Lambeth looked at whether a suspension given to a teacher, when she was being investigated for using unreasonable force against children in her care, was a breach of the implied term of trust and confidence.  The County Court thought it was not, the High Court thought it was, but finally the Court of Appeal came down on the side of the employer saying if the employer's response was "reasonable and proper" then it could not be said to be a breach of the implied term of trust and confidence. 

February also saw the oldest successful (at that time at least) age discrimination claimant.  An eighty-year-old hospital secretary allegedly frogmarched from her desk won her case after the Employment Tribunal found that, despite causing14 patients to have to wait for more than a year for non-urgent surgery, the claimant had not been properly trained. 


In March, Scotland was found to head the UK in terms of representation of women in the workplace according to the PwC Women in Work Index and Virgin Airlines removed a long standing rule that female cabin crew must wear make up while on duty.  The Government also started consulting on the use of confidentiality clauses (or NDAs) in situations of workplace harassment or discrimination. Those that use them, those that misuse them and what can be done about it has been a continuing story all year, and looks set to go on into 2020.


April, as always, saw a lot of employment law changes.  From statutory benefits to the national minimum wage and living wage to employment tribunal compensation levels, everything was on the up.  Gender pay gap reporting deadlines were, largely, met by the 10,500 or so companies required to provide information with the pay gap being found to have diminished by a massive 0.1% from the previous year - hopefully next year will see a more marked improvement.  The first legislation arising from the Good Work Plan was laid before Parliament with the increase in penalties for aggravated breaches of employment law being quadrupled.

Employers (particularly as we now head into Christmas party season) will have breathed a sigh of relief when the High Court handed down its judgement in Shelbourne v Cancer Research.  Drunken antics at a Christmas party led to one employee seriously injuring another but the employer was found not to be vicariously liable due to there being insufficient connection between the employee's actions and his role within the company as a researcher.


In a month that saw the Government urged to overhaul the shared parental leave system following the publication of figures that showed only 1% of parents use it the Court of Appeal handed down its judgement in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire Police v Hextall.   This case concerned whether it was discriminatory to pay a man on shared parental leave less than a woman on maternity leave (whose maternity pay was enhanced). For the time being, employers can continue to pay enhanced maternity pay without needing to pay enhanced shared parental pay, but permission to appeal to the Supreme Court has been granted.


The first case of perceived discrimination to reach the Court of Appeal did so in June, and was successful.  In Chief Constable of Norfolk v Coffey the Court upheld a n Employment Tribunal judgement that the constabulary's decision to refuse Miss Coffey employment (based on their perception of a risk of future inability to carry out front line police work because of a progressive hearing condition) was discrimination based on a perception of disability.

Also in June research supported that dogs at work are a good idea!  The research, which coincided with bring your dog to work day on 21 June, showed that having dogs at work increased employees  dedication to work by 16.5% and also increased employees overall work quality of life.   


In Tillman v Egon Zehnder Ltd the Supreme Court overruled a 99 year old case and provided clarification on when words, which would otherwise render a restrictive covenant too broad to be enforceable, can be severed from the remaining reasonable parts of a clause. 

And as summer temperatures increased we also learnt about the worst jobs to have in a heatwave - sewage engineer in 40 degrees anyone?


In August most of us would have been astounded to learn of some of the worst answers given at interview - from bragging about loving being on benefits because you get paid to do nothing to admitting they had lied about having a degree on their CV - some people seem to be trying really hard not to get the job.

As the summer holidays came to an end, term time workers in the education sector could look forward to a little bit more holiday pay after the judgement in Harpur Trust v Brazel was handed down by the Court of Appeal.  Many in the sector had a practice of simply pro-rating holiday pay for workers with irregular hours. However, the Court of Appeal agreed with the EAT that for those who only work for part of the year (including term time workers) this was not appropriate.  Holiday pay for these workers must be worked out using the calculation set out under regulation 16 of the Working Time Regulations, even if that leads to a windfall for them compared to their fulltime colleagues.


September saw the publication of the annual employment tribunal statistics.  The number of claims being made continues to increase but, with the exception of age discrimination claims, the average level of awards fell. 

Meanwhile, in New Zealand, one worker decided to bring a clown to his redundancy meeting.  And this wasn't a friend that he'd persuaded to dress up - it was a professional clown who charged him NZ$200 for attending.  The clown spent the meeting making balloon animals, though was asked to stop on a few occasions, as it was too difficult to hear above the screeching of plastic.


The judgement in Lopez Ribalda v Spain - which concerned a supermarket that undertook covert CCTV recording of employees accused of theft - was handed down by the Grand Chamber of the European Court of Human Rights.  While highlighting that covert monitoring would not usually be justified, the Grand Chamber found that, in the particular circumstances of this case (including the number of employees involved and the value of products that were stolen), the employer had struck an appropriate balance between the employees' right to privacy and the right of the organisation to protect its property.

Also in October, Google released the outcome of 10 years of examining behaviour of their highest rated managers. Details of what makes a good boss can be found in the follow article from The Guardian, read it on their website.


As the general election was announced and we headed towards the end of the year, the Court of Justice of the European Union handed down a decision confirming that employees who are unable to take holidays due to sickness absence are only entitled to carry forward the EU minimum entitlement of four weeks into a new holiday year.  The judgement affirms an earlier decision of the EAT that the additional 1.6 weeks granted under the Working Time Regulations need not be carried forward. 

Meanwhile, just in time for the start of the festive season there was good news for those who believe that sick days are for use after a big Christmas night out - a German court ruled that hangovers are an illness.


In the last month of 2019, the question that came before the Supreme Court was - what is the reason for dismissal when a manger decides an employee should be dismissed because she has whistleblown but that reason is hidden behind her being put on a performance improvement procedure which ultimately leads to her dismissal by a more senior manager?  Usually, courts and tribunals consider the mind set and thought process of the individual who took the decision to dismiss and not any other employee.  However, in the circumstances of the case, it concluded that it was the court's duty to "penetrate through the invention rather than allow it to infect its own determination".  In other words, the reason was that of the manipulator and not of the more senior manager who had, in good faith, dismissed for poor performance.

As the year comes to a close we can look forward to a new decade.  For details of what we think is likely to make it big next year in the world of employment law make sure you take a look at our January enews.

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