Frontline: UK Employment Law Update - November 2016

Welcome to the November edition of Frontline. This month, Associate Emily Clark talks about recruitment best practice and shares our five top tips to mitigate against potential risks to your organisation.

We also bring you our latest Brexit update and updated international news from our 'Beyond the UK' section, including our upcoming Asia-Pacific webinar 'Uberization and Changing Work Patterns' and a link to our latest China Employment Law update.

Job advert for a PA specifying bra size?

Sadly it's true. A recruitment agency was widely criticised in the press last month after posting job adverts for "attractive women" and specifying what bra size applicants should be. Whilst audacious examples like this still appear from time to time, fortunately the vast majority of employers wouldn't dream of directly discriminating against candidates. But how confident are you that your processes are not inadvertently indirectly discriminatory?

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Case Summary 

Uber loses out to workers.

Mr Aslam, Mr Farrer & Others v Uber BV, Uber London Ltd & Uber Britannia Ltd [2016] WL 06397421

On 28 October 2016 the Employment Tribunal ruled in favour of current and former Uber drivers seeking to establish their status as 'workers'. This means that the drivers are entitled to certain rights, including national minimum wage, holiday pay and rest breaks. Uber unsuccessfully argued that their drivers are self-employed as they are entitled to choose where and when they work.

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Events How narrow should 'activities' be interpreted for TUPE transfers?

The Salvation Army Trustee Company v Bahi & Others UKEAT/0120/16

Coventry City Council provided a range of services to homeless people through contracts with numerous providers. The claimants were employed by a charity, CCL, and they worked with the Council to provide 'accommodation based support' for men and women. The Council decided to get rid of the separate contracts and merge the provision of homelessness and ex-offender support through a single point of access. The Salvation Army Trustee Company (SAT) were awarded the contract.

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Failure to implement bespoke rosters for breastfeeding women amounted to indirect sex discrimination.

McFarlane and another v EasyJet Airline Company Ltd ET/1401496/15 & ET/3401933/15

EasyJet's failure to accommodate women who were breastfeeding by limiting their shifts to eight hours amounted to indirect sex discrimination.

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Court of Appeal decides that statutory holidays pay must include contractual results-based commission.

British Gas Trading Ltd v Lock and another [2016]

This is an important case in the evolving field of holiday pay and variable remuneration. The Court of Appeal confirmed the Employment Appeal Tribunal's position that holiday pay should include compensation for contractual results-based commission which the employee usually earns.

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Employers must give clear consideration to amend restrictive covenants.

Decorus Ltd v Daniel Penfold & Procure Store Ltd [2016] EWHC 1421 (QB)

This case highlights the importance of providing consideration to employees when introducing or amending post-termination restrictive covenants once employment has commenced.

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In the Press

^{World Class Streamlining}

Dan Sharman, Associate, spoke to Employee Benefits on the processes involved and the issues to consider when organisations want to expand their share schemes to cover international jurisdictions. You can read Dan's piece on page 42 of Employee Benefit's digital magazine.

Read the full article >

Artificial Intelligence

Kate Hartley, Associate, spoke to People Management on artificial intelligence in the workplace.

Read the full article >