What most influenced 2017 in employment law?
We summarise the most influential employment decisions in 2017:
Employment tribunal fees abolished
The abolition of tribunal fees will change the landscape for employers in respect of employment tribunal claims. On 14 December 2017, statistics published by the Ministry of Justice for July to September 2017 showed a 64 % increase in single applicant claims since the abolition of fees.
As well as new claims, employers may have to defend old claims that were struck out because the claimant did not pay the fee or was deterred from bringing their claim because of the fees. It will be decided case by case whether such claims can be brought ‘out of time’.
Backdated pay for untaken holiday
The European Court of Justice (ECJ) ruled that an employee who had established ‘worker’ status was entitled to pay for both unpaid holiday he had taken and holiday he did not take because he thought it would be unpaid.
Unlike holiday, which carries over during sick leave and can be lost after a certain period, the ECJ found that there was no time limit on the untaken leave that had accrued because the company failed to provide the worker with his right to paid holiday. The ruling meant that he could claim untaken leave for his 13 years’ engagement. The Court of Appeal will now decide whether the ECJ judgment is consistent with UK law and therefore no ruling is yet in place, but watch this space for further judgment.
Worker status in the gig economy
The Employment Appeal Tribunal (EAT) upheld the employment tribunal’s 2016 decision that Uber drivers were ‘workers’ and not self-employed. Uber’s request to leapfrog its appeal to the Supreme Court was refused and a Court of Appeal hearing is expected. Other gig economy cases followed the same trend, namely the Court of Appeal ruling in Pimlico Plumbers v Smith, in addition to several employment tribunal decisions that couriers at CitySprint, Excel and Addison Lee were workers.
It is for employers to ascertain the true employment status of their workforce, regardless of what the parties agree. Engaging staff on a self-employed basis when in reality they are ‘workers’ means they are entitled to the national minimum wage, paid holiday and pension auto-enrolment. The Supreme Court will hear Pimlico Plumbers’ high-profile appeal on 20 February 2018.
Voluntary overtime to be included in holiday pay
The EAT has found that regular voluntary overtime should be included when calculating holiday pay. Consequently, guaranteed compulsory, non-guaranteed compulsory and voluntary overtime must all be included in holiday pay. For voluntary overtime, the test is whether the ‘pattern of work’ extends for a sufficient period of time on a regular and/or recurring basis to justify the description ‘normal’. This ruling only applies to the four weeks’ leave guaranteed under EU law, not the additional 1.6 weeks’ under UK law or any other contractual leave.
Enhanced shared parental pay for fathers
Should shared parental pay (ShPP) be enhanced for fathers on shared parental leave (SPL) if maternity pay is enhanced for mothers on maternity leave? The answer was yes in a recent case where a father successfully argued that enhanced maternity pay for his female colleagues and no enhanced ShPP for him constituted direct sex discrimination.
The case is being appealed and if upheld, employers will need to treat ShPP and maternity pay equally and enhance (or not enhance) both.