A Look Back At The Major Employment Law Events In 2017
Last year was a tumultuous year for employment law. From the abolition of the Employment Tribunal and Employment Appeal Tribunal Fees to disability discrimination and whistleblowing, employers and HR directors need to take note of certain significant developments ushered in by the courts. 2018 looks to be just as dynamic for employers, not least due to the GDPR coming into force. By now, companies should be well underway in creating data maps, updating consent clauses, and appointing a Data Protection Officer (DPO) if required.
Major cases which affected employers in 2017 included:
R (on the application of Unison) v Lord Chancellor (Supreme Court).
When it comes to employment law decisions, it does not get much bigger the Unison case. The Statesman called it “the most significant judicial intervention in the history of British employment and constitutional law”.
In 2013, the government introduced fees of up to £1,200 for employees who wished to bring cases to the Employment Tribunal or the Employment Appeals Tribunal. This resulted in a 79% drop in employees bring claims against their employers.
The Supreme Court ruled the fees were unlawful and unconstitutional which led to their immediate removal.
The effect of the decision was immediate; in the first month (August 2017) some 3,045 single cases were filed, representing a month-on-month rise of 124% and an increase of 109% on August 2016. The upward trend in claims being filed has continued, albeit not as dramatically.
Uber BV, Uber London Ltd, Uber Britannia Ltd v Aslam, Farrar and ors (Employment Appeal Tribunal)
Poor Uber had a tough year in 2017. First Transport for London decided not to renew the app company’s private hire licence on the basis that the company is not a “fit and proper” private car hire operator. The Silicon Valley success story has been plagued by cases of sexual assault by its drivers. In 2016, The Sun newspaper revealed the Metropolitan Police had investigated 32 drivers for rape or sexual assault of a passenger between May 2015 and May 2016. Then in December 2017, a British diplomat was murdered by an Uber driver in Beirut. Lawsuits are also being brought against the company following allegations of sexual assault in the US.
On top of this, a decision by the Employment Tribunal stating drivers employed by Uber were employees and therefore entitled to statutory employment rights was upheld on appeal. This decision, along with a similar ruling against Addison Lee, has vast implications for those in the so-called ‘gig economy’ and has resulted in HR departments having to clearly define when a worker is self-employed and therefore not entitled to minimum wage and holiday pay.
Barbulescu v Romania (ECHR)
Can an employer freely monitor their employees’ internet use? Not according to the European Court of Human Rights (ECHR). In September 2017, it released a judgment stating that a Romanian worker was correct when he alleged Romanian courts had not properly upheld his right to private life which had been breached when his employer checked up on chat logs from his professional Yahoo Messenger account that included personal and private communications
The ECHR judges held that the Romanian courts had failed to get a “fair balance” between Mr Bărbulescu’s right to private life and his employer’s right to ensure he was obeying work rules. The court was explicitly clear in stating “an employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary”.
This judgment means employers must provide clear warnings to staff regarding the monitoring of workplace email and internet use.
Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed (Court of Appeal)
The issue of what constitutes ‘public interest disclosure’ in relation to whistleblowing was considered by the Court of Appeal in June. In 2013, the laws surrounding whistleblowing was changed so that protection would only be granted if the employee reasonably believed that he or she was making the disclosure “in the public interest”. This was done to prevent workers abusing their right to whistleblowing protection in relation to disclosing matters relating to their own employment contracts.
The court stated that the definition of what counts as “in the public interest” cannot be constrained by absolute rules and the Employment Tribunal must take several factors into account, including the number of employees involved and the interests affected by the behaviour.
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