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Butcher Andrews Employment News Bulletin – October 2016

Are Uber drivers ‘workers’ or self employed?
At the time of writing this bulletin, the Employment Tribunal decision on whether or not Uber taxi drivers are workers was handed down. The decision is that they are indeed ‘workers’ and not self employed, meaning that they are entitled to holiday pay, paid rest breaks and the National Minimum Wage etc.  This will affect tens of thousands of workers in similar roles, particularly in the so-called ‘gig economy’, even though it was brought by only two drivers, one of whom no longer works for the company.  There appear to be many drivers who don’t like this decision and it is highly likely to be appealed.

Brexit: the uncertainty continues

brexit-shutterstock2In our last bulletin we listed the areas of employment law that might, or might not, be affected by the decision to leave the EU. On 12th October the House of Commons Library published a briefing paper (Number CBP 7732) giving an overview of the relationship between UK and EU law, case law, the Government’s position etc. There is a useful table on page 10 setting out the rights that might be affected. This is a useful document, if somewhat lacking in detail. Briefing Paper CBP 7732

Discrimination v freedom of religion

In the last week, the Northern Ireland Court of Appeal has handed down its decision in Lee v Ashers Baking Company, the co-called ‘gay cake’ case. You will no doubt recall that the devoutly Christian owners of the baking company refused to decorate a cake with the caption ‘Support Gay Marriage’ and the gay couple who ordered the cake brought a claim for discrimination. The Court effectively had to decide on the competing interests of religious belief and the law against discrimination. It held that the McArthurs, owners of Ashers Bakery, were permitted to refuse to decorate cakes involving any religious or political message; what they were not permitted to do was refuse to decorate cakes which carried a particular religious or political message just because it conflicted with their own views. Confusing? Yes.

Labour Party conference: Tribunal fees

At the conference, the Shadow justice secretary Richard Burgon indicated that, if Labour were to win the next general election, it would abolish Employment Tribunal fees. He said that though statistics show that claims had fallen by approximately 70% since the introduction of fees, it was unlikely that employer had become 70% behaved in the same period. He also suggested that conciliators from ACAS had not picked up the slack, because they are ‘merely acting as a go-between’ rather than helping claimants. This is of course academic if Labour is not returned to power and there is no indication that the Conservative Party will reverse the decision by the Coalition Government to introduce fees.

Staying with ACAS Early Conciliation, in a recent case the EAT dismissed an employer’s appeal against a finding that a Tribunal had jurisdiction to hear a claim of constructive dismissal where the employee resigned after the EC certificate had been issued. It decided that, as long as there is a link between the matters raised in early conciliation and those identified on the claim form, there is no requirement for the matters complained of to pre-date the certificate.

Reasonable adjustments

In another recent case the EAT heard that an employer dismissed a disabled employee who had refused to accept a pay cut after being moved to a less skilled role. The EAT found that the dismissal was discriminatory and unfair and ruled that the duty to make reasonable adjustments extends to continuing to pay a higher salary when an employee is moved to a lesser role. It said that the objectives of the legislation envisaged a cost to the employer when it makes reasonable adjustments, and ‘pay protection’ was one form of such cost.

And finally

You will not fail to have noticed that the National Minimum Wage and National Living Wage increased on October 1st to:-
• £7.20 per hour for those 25 years and older. This rate applies to both NMW and NLW
• £6.95 per hour for those aged 21 – 24
• £5.55 per hour for those aged 18 – 20
• £4 per hour for those aged 16 and 17
• £3.40 per hour for apprentices under 19, or over 19 if in their first year
The rates will change in April 2017, and annually thereafter

If you have any queries about the contents of this bulletin, or any other matter, please contact Jennie Borgnis on 01328 852830 or

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