The most significant tribunal cases of 2019 saw decisions made in both the European and UK courts.
We’ve put together a roundup of a few of the most notable Tribunal cases that are still under appeal, and therefore you might want to watch out for in 2020.
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First up, lets visit the European Court of Justice:
NH v Associazione Avvocatura per i diritti LGBTI — Rete Lenford
An Italian court upheld a discrimination claim brought by an association for LGBT lawyers regarding remarks made by a senior lawyer on an Italian radio programme that he would never hire a homosexual person to work in his law firm.
The case was subsequently referred to the ECJ by the Italian Supreme Court and in October the Advocate General (AG) Sharpston gave her opinion that the remarks were capable of falling within the scope of unlawful discrimination as defined in the Equal Treatment Framework Directive (2000/78/EC) even though there was no active recruitment exercise at the time the remarks were made.
Whilst the Court is not bound to follow the AG’s opinion, it usually does. The hearing date is awaited.
It’s always been the case that discrimination can occur pre or post-employment. If the AG’s opinion is followed, it opens up the potential for a claim to be brought even in the absence of a direct victim. Associations such as groups and representative bodies could potentially bring such claims.
Therefore, it would be a practical step to ensure that your policy and diversity training makes clear the risks of discrimination arising, even before recruitment is envisaged.
On to the Supreme Court:
Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police
In May, the Court of Appeal has held that it was neither direct or indirect discrimination, nor a breach of the equal pay sex equality clause for an employer not to pay male employees on shared parental leave, enhanced shared parental pay of an amount equivalent to the enhanced maternity pay that a female on maternity leave would receive.
Permission to appeal has been granted and we are currently awaiting a hearing date.
At present, employers don’t need to make any changes to more generous maternity pay provisions.
However, if the decision is not upheld by the Supreme Court employers may have to mirror the same enhanced maternity terms for employees on shared parental leave or face potential claims.
This could lead to employers withdrawing or reducing the terms available to mothers on maternity leave.
Uber BV and others v Aslam and others
At the end of last year, the Court of Appeal upheld an EAT ruling that Uber drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998. It held that there was no contract between the driver and passenger and that, in reality, the drivers worked for Uber. Permission to appeal has been grated and the hearing is set for July 2020.
This case is one to watch, as it gives guidance to help determine who should be classed as workers and given the corresponding entitlements and who is genuinely self-employed – therefore not entitled to these rights.
Finally, the Employment Tribunal
Casamitjana v League Against Cruel Sports
The employment tribunal are to decide whether ethical veganism is capable of being protected as a philosophical belief. Whichever way this decision goes, as it’s a first instance decision it could be subject to further appeal. The case is due to be heard on 2 and 3 January 2020.
Remember! There are a number of changes in legislation coming in to force on 6th April 2020.
The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 (SI 2018/1378) come into force which make changes to Section 1 statements and the reference period for calculating holiday pay.
The Agency Workers (Amendment) Regulations 2019 (SI 2019/724) bring to an end to the Swedish Derogation which currently allows employment businesses to avoid pay parity between agency workers and direct employees if certain conditions are met.
The National Insurance Contributions (Termination Awards and Sporting Testimonials) Act 2019 amends existing legislation meaning that all termination payment over £30k will be subject to Class 1A NIC’s.
The Parental Bereavement (Leave and Pay) Act 2018 is expected to come into effect in April 2020.
However, a consultation on draft regulations is expected before then. Here’s our guidance on what employers can do to support bereaved employees, over and above their rights under the new legislation.
Extension to the IR35 rules. If the Finance Bill is passed, it will shift responsibility for IR35 tax compliance from the personal service company to the client or intermediary.
The expected implementation date is 6 April 2020 however this should be regarded as provisional, pending the passing of the Bill.