The Supreme Court recently ruled that judges are workers under whistleblowing legislation and are thus protected from being treated badly for making a protected disclosure. In the case at hand, the court agreed that the judge did not obviously fall within the definition of a 'worker' because she did not work under a contract, which would mean that she was not protected by whistleblowing laws. However, the court decided that this failed to protect her human rights – specifically, the right to freedom of expression.
The government recently published details of its Good Work Plan, which sets out its considered position on the Taylor review of modern working practices. While the plan provides useful information on what is likely to happen, it is too early for employers to do much to prepare. The draft regulations that have been published so far are relatively straightforward and most changes will not come into effect until April 2020 at the earliest.
There were a number of significant employment law decisions in 2018, particularly on the issue of employment status, which continues to be a hot topic. In addition, the fallout from various high-profile allegations of sexual harassment and the resulting #MeToo movement has continued, with the use of non-disclosure agreements in harassment cases provoking debate. There are also various reforms planned following the government's response to the Taylor review of modern working practices.
The Employment Appeal Tribunal has decided that failure to pay a father his full salary during shared parental leave does not constitute sex discrimination in circumstances where a mother taking maternity leave during the same period would have received full pay. The tribunal held that a woman on maternity leave and a man taking shared parental leave are not in comparable circumstances. Further, the Equality Act allows special treatment to be given to women in connection with pregnancy or childbirth.
The Employment Appeal Tribunal recently confirmed that it is unlawful for employers to discriminate against employees because of a perceived disability, even where an employee is not disabled under the relevant legal test. It held that disability discrimination based on a perception works in the same way as discrimination of other protected characteristics; therefore, even an incorrect assumption about a health condition still constitutes direct disability discrimination.
After a brief pilot scheme, the full scheme for refunding employment tribunal fees is now open for use. It can be used immediately by all claimants and respondents who have paid a fee during employment tribunal proceedings or during an appeal to the Employment Appeal Tribunal. Employers that have been involved in employment tribunal proceedings in the past few years should think carefully about whether they can reclaim any fees.
The government has launched the first stage of its scheme for refunding employment tribunal fees following the Supreme Court's decision that the fees system was unlawful. The first stage will involve 1,000 people being contacted to apply for a refund, after which the full scheme will be rolled out. Employers should register their interest now and locate their Employment Tribunal order and proof of payment, in preparation for making an application when the full scheme opens.
The Supreme Court recently ruled that an exemption in the Equality Act 2010 allowing employers to exclude civil partners from pension benefits accrued before the Civil Partnership Act 2004 came into force is incompatible with EU law and should be disapplied. The case revolved around the retrospective application of the EU Equal Treatment Framework Directive, which prohibits discrimination in employment on various grounds, including sexual orientation.
It seems unlikely that UK employment law will be transformed in significant ways as a result of Brexit, at least in the short term. In the medium term, the government may start to tweak the law to make it more business friendly. However, it is difficult to envisage a wholesale 'bonfire of regulations', at least without a radical cultural and political shift. In the longer term, if the United Kingdom is outside the single market, there will inevitably be a growing divergence between UK and EU employment law.
A number of changes to employment law have taken place in the past year, including with regard to modern slavery, employment tribunals and the calculation of holiday pay. Looking ahead, some significant reforms are planned for 2017, including gender pay gap reporting, industrial action reforms and the taxation of termination payments.
The government recently launched two new consultations on reforms to the employment tribunal system and on work, health and disability. The proposed changes to tribunals are part of a wider programme of court reform intended to modernise claims handling, streamline access to justice and reduce costs. The green paper on work, health and disability is designed to help the government to comprehend why people with disabilities or long-term health conditions may struggle to find or keep a job.