Legal News

The Scottish Ministers v Johnston [2024] EAT 121 Johanna Johnston KC remained within one, continuing contract of employment when appointed as a temporary judge of the High Court of Justiciary, whilst simultaneously serving as a sheriff, the tribunal concluded. It accepted that, when presiding as a temporary judge, Johnston worked at a different location and undertook judicial functions in another jurisdiction; however, other significant elements stayed the same. In particular, there was no alteration to Johnston’s remuneration, nor to the identities of the parties to the employment relationship, according to the decision as recorded in the judgment of the tribunal......

Commissioners for Revenue and Customs v Lees of Scotland Ltd [2024] EAT 120 What are the practical implications of this decision? The result appears rather harsh on the employer. The scheme was praised as laudable, its records of each worker’s savings were kept with meticulous care, and savings were always paid out when asked. Its misstep for NMW purposes was retaining those savings in its own bank account instead of placing them with an independent third party. Consequently, the funds were treated as for its own use and benefit—even if that was not the scheme’s primary aim—because, in principle, it could use the money as it wished and earn interest on it. This ruling highlights the uncompromising way NMW legislation will be applied, with no room to consider factors such as the employer’s intentions or that workers were the principal...

Bailey v Stonewall Equality Ltd and others [2024] EAT 119 Judge Charles Bourne concluded that Allison Bailey had fallen “well short” of proving that the conduct of a Stonewall employee affected how her chambers responded after she opposed its partnership with the charity. Bailey prevailed on most aspects of her discrimination claim against Garden Court, which concerned its investigation into a number of her tweets articulating beliefs about biological sex and gender. During the proceedings, the barrister alleged that Stonewall had “been complicit in supporting a campaign of harassment, intimidation and threats made to anyone who questions its trans self- ID ideology, especially lesbians and feminists”......

In this issue: Status and worker categories Employment contract Pay Performance, conduct and discipline Equality, diversity and inclusion Corporate governance Employment Tribunals Settlement Daily and weekly news alerts Dates for your diary Trackers New Q& As Status and worker categories Df E announces the launch of Skills England The Department for Education ( Df E) has unveiled Skills England, a new national body designed to strengthen the nation’s skills over the course of the next decade. Its purpose is to unite central and local government, employers, training providers and trade unions to address skills requirements across all regions, and also to deliver strategic oversight of the post-16 skills system, aligned with the government’s Industrial Strategy. The new organisation will be introduced in stages over the next 9 to 12...

Bennett v London Borough of Islington [2024] EAT 118 Employment Appeal Tribunal Judge Simon Auerbach found that the employment tribunal should not have proceeded to trial on Heidi Bennett’s case against the London Borough of Islington after her solicitor withdrew due to a worsening kidney stone condition. He ruled that the tribunal failed to grapple with the full consequences for the claimant of losing her representative at that point, particularly her ability to run the case herself, given the evidence of her mental health disability. On that basis, the appellate judge directed that the matter be heard afresh......

Addison Lee Ltd v (1) Afshar & Others (2) Mushtaq & Others (3) Akinyeye & Others [2024] EAT 114 Employment Appeal Judge Martin Griffiths held that the earlier tribunal committed no error in referring to prior Addison Lee litigation and in making deposit orders against three elements of the minicab company’s defence to claims by more than 300 drivers who maintain they are not genuinely self-employed and should be remunerated as workers. Judge Griffiths observed that earlier findings were not decisive, yet the employment tribunal was permitted to regard them as relevant and to take them into account when evaluating the prospects of success. They did not establish the point, but they were indicative. In 2017, Leigh Day represented three Addison Lee drivers who obtained recognition as workers in Lange v Addison Lee ( ET Case No. 2208029/2016,...

In this issue: The King’s Speech 2024 Key developments Status and worker categories Equality, diversity and inclusion Redundancy Unfair dismissal Employment Tribunals Financial services and banking: employment issues Immigration Daily and weekly news alerts New and updated content IRLR Highlights— August 2024 Dates for your diary Trackers New Q& As The King’s Speech 2024 King’s Speech 2024— Employment His Majesty, King Charles III, outlined the government’s agenda and planned measures for the forthcoming parliamentary term during the State Opening of Parliament on 17 July 2024. The 2024 King’s Speech concentrates on raising the living standards of working people via economic expansion and on ‘taking the brakes off Britain’. A headline employment proposal is the Employment Rights Bill, reflecting the government’s pledge to implement its ‘ Plan to Make Work Pay:...

Augustine v Data Cars Ltd [2024] EAT 117 What are the practical implications of this decision? In this judgment, the EAT, considering an English case, confronts the clashing authorities on the causation test in claims alleging less favourable treatment on the basis that the worker is a part‑time worker. It explains that, if determining the issue free from existing case law, it would have adopted the same test used in the analogous areas of discrimination and whistleblowing, namely that the part‑time working was the ‘effective and predominant’ reason, even if it was not the only reason. The EAT nevertheless proceeds to follow the approach of the Scottish CSIH in Mc Menemy, requiring that the part‑time working be the ‘sole’ cause of the less favourable treatment. As a consequence, the tribunal has endorsed the narrower of the two possible options, tightening the standard and making it more...

G Masiero and others v Barchester Healthcare Ltd [2024] EAT 112 On 12 July 2024, Judge Holly Stout, in [2024] EAT 112, upheld a tribunal’s decision that Barchester Healthcare Ltd acted fairly in dismissing four staff who declined the coronavirus vaccination. In her reasons, Judge Stout stated that the Tribunal did not 'overegg' the case by supposing that permitting the claimants to continue working unvaccinated would have infringed residents’ right to life; rather, the appellate tribunal recorded that it had taken a 'realistic understanding' of the extent to which vaccination could have reduced risks to residents’ lives in that context. Care home workers Galina Dimitrova, Sammy‑ Jo Chadwick, Joanna Hussain and a colleague identified only as G Masiero appealed after the Employment Tribunal in 2022 held that the care home’s objective of protecting residents by mandating vaccination outweighed workers’ rights under the European...

Minis Childcare Ltd v Ms Z Hilton- Webb [2024] EAT 108 Judge James Tayler of the Employment Appeal Tribunal ( EAT) remarked that he 'simply [does] not know' on what basis the previous Employment Tribunal found Minis Childcare Ltd’s chosen font size to be unjustified and therefore discriminatory towards the claimant, identified only as Z. Hilton- Webb. He accordingly remitted the matter to the tribunal to determine whether the nursery’s policy pursued a 'legitimate aim', for example the efficient management of the business......

EHRC Consultation: technical guidance on sexual harassment and harassment at work, 9 July 2024 EHRC technical guidance: sexual harassment and harassment at work What are the practical implications of this development? The EHRC has allowed only a brief, four-week period for employers and others to comment on the proposed updates. The consultation outlines: a new preventative duty section (draft paragraphs 3.16 to 3.43); and renumbering of some existing paragraphs in Chapter 4 However, employers and practitioners would value a complete version of the redrafted Chapter, given uncertainty about how the new preventative duty will slot into the current guidance, and clarity on whether any other Chapter is being removed (which appears likely in view of the altered numbering). The consultation also states that the duty to take reasonable steps to stop sexual harassment of employees in the course of their employment includes an obligation to prevent sexual...

In this issue: Horizon scanning Pay Prohibited behaviour (discrimination, etc) Inclusion and the gender pay gap Workers’ rights to information and consultation Matters arising on termination Employment tribunals Brexit International employment law guides— EU Lex Talk®Employment: a Lexis®Nexis community Daily and weekly news alerts Key dates for your diary Trackers New Q& As Horizon scanning Labour’s victory means radical change in employment law. Law360 reports that the Labour Party’s win on 4 July 2024 signals the most significant employment law reform in a generation, according to lawyers—though certain proposals may have less effect or be introduced more slowly than first suggested. See News Analysis: Labour’s victory means radical change in employment law. What to expect from the new Labour government on employment law Following the General Election on 4 July 2024, the Labour Party has...

HSBC European Works Council v HSBC Continental Europe [2024] EAT 104 The Employment Appeal Tribunal ( EAT) refused to overturn the Central Arbitration Committee’s ( CAC) 2021 determination, holding that HSBC could amend its European Works Council ( EWC) agreement and shift operations outside the UK on the UK’s exit from the EU and the European Economic Area ( EEA). Judge Akhlaq Choudhury stated that it was, in his view, reasonably clear that the parties had intended that any change arising from an alteration in membership status would likewise lead to revisions to the list of operations. The judgment records that in 2021, a year after the UK formally left the EU, HSBC relocated its central management—and, by extension, its EWC—to Ireland. The EWC contended that the UK unit ought to have been allowed to continue operating. It relied on a Court of Appeal...

DRAFT Practice Direction: Panel composition in the Employment Tribunals and Employment Appeal Tribunal (29 October 2024) What are the practical implications of this development? The consultation’s conclusion appears less far-reaching than many anticipated. Rather than fixing a default by case type, or excising non-legal members from employment tribunal hearings altogether, the Senior President has chosen to have no default at all on panel composition for final hearings. Thus, whether a matter to be determined at a final hearing is listed before a judge sitting alone or a full panel (ie a judge with two non-legal members ( NLMs)) will be decided case by case. This stance applies to all substantive final hearings, not only those currently heard by a full panel. It remains unclear what proportion of final hearings will fall into each category. However, the consultation response’s reference to NLMs being used only where...

What are the key priorities of the Hungarian Presidency? The core priorities under the Hungarian Presidency include: a new European Competitiveness Deal strengthening European defence policy a coherent and merit-based enlargement policy curbing illegal migration shaping the future of cohesion policy a farmer-focused EU agricultural policy tackling demographic challenges What are the priorities of the Presidency regarding Commercial? On the overhaul of the Late Payment Directive, the Hungarian Presidency seeks agreement on a general approach to the proposed amendment and to commence trilogue talks with the European Parliament. Driven by ongoing digitalisation, the Alternative Dispute Resolution Directive is being updated, and the Presidency intends to advance this file. It will also continue work on the proposed Toy Safety Regulation... What are the priorities of the Presidency regarding Dispute Resolution? In e- Justice cooperation, the Presidency will examine how AI can be...

Make work pay The party has already moderated several promises and signalled it will seek views from the public and employers before introducing fresh laws. Yet, by folding the whole 26-point plan to 'make work pay' into its manifesto, the new government expects its bills to clear the House of Lords without obstruction. David Hopper, a partner at Lewis Silkin LLP, noted that employers are already preparing for what lies ahead. He argued that, since the reforms largely carry no direct cost to the government, legislating to expand employment rights could provide quick, straightforward wins. Delivering the entire package over the next five years, he added, would amount to a radical shift in employment rights. Labour's programme includes: ' Day one' rights to sick and parental leave Stricter redundancy rules Greater flexibility entitlements for workers New reporting...

Clayson and Others v Ministry of Justice and Another [2024] EAT 99 What are the practical implications of this case? This judgment underscores the difficulties that can emerge when evaluating complaints of less favourable treatment where the structure of pension provision has altered markedly over time. In short, the claimants argued that, upon the introduction of JUPRA from 1 April 1995, they should have enjoyed the same transitional protection as circuit judges already appointed before that date. The Employment Tribunal, however, found as a matter of fact that, for JUPRA’s purposes, the offices of recorder and circuit judge were distinct, and that if a pension scheme had then existed for fee‑paid (ie, part‑time) judges, including recorders, it would have been different from the JPA scheme. Such a scheme was later applied retrospectively for the claimants while they served as recorders, with benefits on terms...

Background In September 2021, the Labour Party unveiled its programme for working people, titled ‘ A new deal for working people’, at the Labour Party Conference. Since then, the paper has been revised multiple times, culminating in the final text— Labour’s Plan to make work pay: Delivering a new deal for working people (the New Deal)—issued shortly before the manifesto’s publication in June 2024. The Labour Manifesto confirms the New Deal will be delivered in full. What has the Labour Party promised? Labour has committed to: Table legislation in Parliament within the first 100 days in office, including a new Employment Rights Bill Advance further primary and secondary legislation within the same 100-day period, consulting fully with employers, trade unions and workers on practical implementation before laws are passed Undertake a review of parental leave within the first year of a Labour...

Ngole v Touchstone Leeds ( ET Case No 1805942/2022) The Employment Tribunal partly upheld Felix Ngole’s claim against the health and wellbeing charity Touchstone Leeds in a decision released on 27 June 2024, finding that the charity breached his freedom of expression by rescinding its job offer before allowing him a chance to reply. On 21 June 2024, Judge Jonathan Brain decided that, although it was plain Touchstone feared Mr Ngole’s belief that homosexuality is sinful could lead to discrimination against some service users, the organisation should have taken further steps to obtain reassurance from him that this would not happen. The judge stated that a less intrusive response affecting the claimant’s freedom of expression could have been adopted without unduly compromising the objective, and that withdrawing the offer without first seeking those assurances was therefore...

In this issue: Horizon scanning Status and worker categories Pay Prohibited conduct Union status and obligations TUPE and asset purchases Settlement Useful information Lex Talk®Employment: a Lexis®Nexis community Daily and weekly news alerts Dates for your diary Trackers New Q& As Horizon scanning General Election 2024—parliamentary process, wash-up and manifesto pledges This News Analysis brings together practice area coverage of the 2024 General Election. It features insights from practice area specialists, practical guidance, news reporting and analysis, and journal content. See News Analysis: General Election 2024—parliamentary process, wash-up and manifesto pledges. See also our Practice Note: General Election 2024—employment pledge and policy tracker. Status and worker categories Accountant found to be both a partner and a worker In Watson v Johnson [2024] EAT 105, the employment tribunal determined that the claimant (a seasoned tax accountant with expertise in advising on employment status issues) had moved from being an employee of the respondent firm to holding partner status for the purposes of the...