Frontline UK 2019: Employment Law Update - Edition 2

This month, Associate Rob Briggs follows up on our prior edition's analysis of the Government's Good Work Plan with a critical line of inquiry into the continued lack of clarity surrounding employment status and tax.

Our case updates include an EAT decision which ruled a discriminator's motives immaterial in a case of discrimination, an urgent injunction regarding sexual harassment grievances awarded to a magic circle law firm, a confirmation on the issue of comparators in discrimination claims, and an important further ruling in distinguishing between 'workers' or 'employees', this time in cycling.

Finally, our legal updates discuss more Brexit developments regarding an announced unilateral Temporary Leave to Remain Scheme, a Government consultation on pregnancy and maternal discrimination, and Home Office penalties for failing to prevent illegal working.

Good work for all – but what about worker status?

The Government's Good Work Plan, published just before Christmas, was full of gifts for Britain's workers, from a right to request a more predictable contract, to clearer and more transparent information for staff.

However, the Plan is short on concrete ideas when it comes to the critical issue of employment status and tax. This is especially conspicuous given the raft of tribunal and court cases in recent years, from Uber to Deliveroo, which have largely found that individuals working in the 'gig economy' are being mislabelled and denied key legal rights.

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Case Summary

Discriminator's religion or belief cannot amount to direct discrimination

Gan Menachem Hendon Limited v De Groen UKEAT/0059/18

On 12 February 2019, the EAT confirmed that a discriminator's motives for less favourable treatment are immaterial in a case of discrimination, rejecting the ET's finding in the case.

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Urgent injunction granted to prevent disclosure of sexual harassment grievances

Linklaters v Frank Mellish [2019] EWHC 177 (QB)

On 31 January 2019, magic circle law firm, Linklaters LLP, was awarded an urgent temporary injunction to prevent a former employee from making its confidential information public through giving media interviews about the culture of the firm, in particular about the "ongoing struggle Linklaters LLP has with women in the workplace". 

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The issue of comparators in the EAT and Court of Appeal

Mr A Olalekan v Serco Ltd: UKEAT/0189/18/RN.
Asda Stores Ltd v Brierley & Others [2019] EWCA Civ 44

On 30 January 2019, the EAT confirmed that material differences between the Claimant and the actual comparators he sought to rely on meant they could not operate as statutory comparators in a race discrimination claim. The Tribunal had not erred in accepting the Respondent's evidence that it would have treated a hypothetical comparator in the same way, and that there were material differences between the Claimant and his actual comparators such that they were not appropriate comparators.

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Are professional athletes employees or workers for their governing body and funders?

Varnish v British Cycling Federation t/a British Cycling (Employment Tribunal)

A professional cyclist was not an employee or a worker under the Employment Rights Act 1996 and the Equality Act 2010, an Employment Tribunal has ruled. In a highly fact-specific judgment, the world record holding athlete, Jess Varnish, was denied the statutory rights and protections that employment status (and, to a lesser extent, worker status) affords.

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Legal Updates

Government announces unilateral Temporary Leave to Remain Scheme in "no-deal" scenario (not to be confused with the EU Settlement Scheme)

In recent times, it has been unclear how the UK Government was going to treat EU nationals who arrive after 29 March 2019, but before 31 December 2020, in a no-deal scenario. Such individuals do not qualify under the EU Settlement Scheme (as they will arrive after 29 March 2019, and will not have previously lived in the UK). That same group is also not subject to the new UK Immigration Rules for EU nationals (these are expected to be implemented from 1 January 2021).

The new scheme will entitle a migrant whose application is successful to 36 months of Temporary Leave to Remain in the UK, although time spent under this scheme does not count in other applications such as Indefinite Leave to Remain.

We have written a full article about the new scheme here.

Government opens consultation on pregnancy and maternity discrimination

Following last year's Taylor Review of modern working practices and the more recent release of the government's Good Work Plan, proposals have now been put forward to extend legal protection for pregnant women and those who exercise their legal right to take maternity leave whose roles become redundant. The existing period of protection, during which redundant employees have enhanced rights to be offered suitable alternative employment, applies during maternity leave. The Department for Business, Energy and Industrial Strategy is consulting on its suggestion to extend this period so that it runs from the date on which an employer is notified in writing of the employee's pregnancy until six months after the employee's return to work.

Additional considerations in the consultation are the extension of redundancy protection in the 'return to work' period to other groups of individuals, including those on adoption leave or shared parental leave, and the effectiveness of government advice and guidance on the rights of pregnant women in the workplace.

The consultation document can be found here. Those interested in participating can submit their responses via an online form, or via email.

Home Office details penalties for employers' failure to prevent illegal working

The UK government has released its revised Code of Practice on preventing illegal working, setting out the factors it will consider when determining the level of penalty imposed on those who employ an illegal worker. The Code sets out the mandatory "right to work" checks that all employers must undertake before employing an individual.

The key change in the publication is the inclusion of the new online "right to work" check, which involves using an individual's Home Office access code to confirm their immigration status, verify their resemblance to the photo on the online service and retain a copy of the check for at least two years after the duration of the employment. The Code also confirms the statutory excuse for employing an illegal worker, the factors to be taking into account when ascertaining the level of breach and the exacerbating and mitigating circumstances considered when imposing a penalty. The maximum potential penalty is £20,000.

The Code of Practice can be found here, and additional government guidance can be found here.