We open November’s bulletin with news of a (small) development in Mr Lock’s long-running case against British Gas.

You may remember the case was about a salesman’s holiday pay; essentially, should it include the commission Mr Lock would have earned if he had been in work instead?

The answer from the European Court of Justice two years ago was yes. But how that holiday payment should be calculated remained up in the air and, unfortunately, this latest decision – that of the Court of Appeal – does nothing to clarify this. The UK court didn’t address the calculation point. What it did do, however, was to confirm that under UK law, workers’ holiday pay should include an amount reflecting the commission they would have earned had they been in work rather than on holiday, subject to some restrictions.

As to the calculation of that holiday pay, it’s a point that will roll on until clear guidance emerges.

This case involved two easyJet crew members who returned to work following maternity leave but who were still breastfeeding their children.

They requested an adjustment to their flying rosters so that they wouldn’t have to work longer than eight hours at a time (easyJet’s system was based on employees potentially working eight-hour, and possibly longer, days). That would allow them to express breast milk in between shifts. To not do so would increase their risk of getting mastitis – a painful condition often caused by the build-up of milk within the breast.

Did easyJet discriminate against the women by refusing to roster them to work shifts of less than eight hours? The company had argued the need to avoid delays and cancellations to flights, and that to not adapt its rostering arrangements to suit employees was a proportionate means of achieving those aims.

Indirect discrimination, the tribunal said. The provision, criterion or practice (the possibility of having to work more than eight hours) disadvantaged women. Easyjet hadn’t managed to objectively justify the PCP, and this is an important point for employers to take away from this case. The company didn’t produce good evidence of the difficulties it said that modified rosters caused it. The employees, on the other hand, had medical evidence to support their case. Although women don’t have a statutory right to take time off for breastfeeding, they have the right to not be indirectly discriminated against because of their sex. There’s also the right to paid suspension, and to be offered suitable alternative work. EasyJet’s failures in respect of these two employees extended beyond its roster practices, highlighting the care that employers must exercise when dealing with breastfeeding mothers.

The line between employees, workers and the ‘genuinely’ self-employed has come under increased scrutiny in recent weeks - and not just because of the much publicised Uber decision. Last month, the Government announced a wide-ranging review by Matthew Taylor, the Chief Executive of the Royal Society of the Arts, into the changing world of work. This month has seen the announcement of an inquiry to be conducted by the Commons Select Committee on Business, Energy and Industrial Strategy. This will focus on the status and rights of agency workers, the self-employed, and those working in the 'gig economy'.

Together with the increased public scrutiny of employers using zero-hours contracts, it does feel as though there is a weight of opinion that the current balance of rights leave some individuals in too precarious a position and vulnerable to exploitation. Whether the Government can come up with a new way of categorising the work of individuals to provide increased security, without jeopardising the flexibility that can encourage innovation and growth, may be the most important employment law question for the future – perhaps even more important than what happens after Brexit.

Under UK law, employment rights are given only to those who qualify either as ‘employees’ or as ‘workers’. Employees work under a contract of employment and have full employment rights, including the right not to be unfairly dismissed. Workers, on the other hand, may still be self-employed for tax purposes and be completely flexible in how much work they choose to do, but nevertheless qualify for a number of rights, including the right to be paid the minimum wage and rights arising under the Working Time Regulations – including paid annual leave.

In Aslam and others v Uber, a number of Uber drivers are claiming that they count as workers and are bringing minimum wage and working time claims. To be workers they must show that they are engaged under a contract to work for Uber and that Uber cannot be described as merely a client or customer of the driver’s business.

At a preliminary hearing of the case an Employment Tribunal has now ruled that Uber drivers are indeed workers, with the result that their claims can go ahead. Uber had strenuously argued that all they did was provide a trading platform that put customers in contact with a number of drivers. They claimed that the drivers were working directly for the customer and were not doing work for Uber at all. The Tribunal rejected this argument. The reality of the situation was that Uber was not just a software company providing a trading platform; it was in the business of providing transportation to customers and marketed itself as such. Uber was concerned with providing a high-quality service and was careful to select drivers who met their requirements. While drivers were free to choose when and for how long they worked, they were encouraged to accept potential rides when they were logged in to the system, the Uber App gave them a specific route to follow, and specified the fare to charge. Drivers could be penalised for cancelling rides that they had initially accepted and were not given any information about the identity of the customer.

The Tribunal concluded that the drivers could not be said to be running individual businesses. In reality they were working for Uber and qualified as workers. This is a case with huge ramifications for Uber and an appeal is expected. However, it does not mean that every app or website designed to help suppliers contact customers will raise similar issues. The Tribunal’s decision is based very much on the particular arrangements made between Uber and its drivers. The case does, however, show that a tribunal will look beyond the phraseology of a contract and a reach a conclusion about what it feels is the reality of the relationship.

It has been reported that a father was indirectly discriminated against on grounds of sex when his rate of pay for shared parental leave (SPL) was less than that of his wife.

The couple worked for Network Rail. Mr Snell’s wife planned to take 27 weeks off and he would then take a share of SPL. Although she was entitled to enhanced pay, he would only get statutory pay. Mr Snell is reported to have been awarded just over £28,000.

This case has identified a significant issue for employers in ensuring that where you enhance certain rates of pay, this is mirrored elsewhere so as not to discriminate against either sex. Network Rail is said to have changed its policy so that only the statutory amount is payable to both men and women during SPL. We’d recommend a policy review to see where you stand on this payment issue.

Disability discrimination happens when a person is treated unfavourably because of something arising in consequence of their disability, and that unfavourable treatment can’t be objectively justified.

The Employment Appeal Tribunal (EAT) in this case was asked to consider, in the context of long-term sickness absence, what it is that must be justified. Is it the employer’s procedure, or the way in which they applied that procedure to a particular employee?

Mr Buchanan was a police officer who was disabled after a serious motorbike accident. He remained off work with post-traumatic stress disorder, and was being managed under his employer’s Unsatisfactory Performance Procedure (UPP), which had three stages. Mr Buchanan had reached the second of these stages. He went on to claim that his employer had discriminated against him by applying the UPP and issuing improvement notices. He said that the notices required him to work when he was clearly incapable of doing so. He also said that his employer ought not to have persisted with the UPP process, or it should have been more measured in how it went about it. The complaint was about the application of the UPP rather than the UPP itself.

The Employment Tribunal held that there had been unfavourable treatment. It also decided that the employer needed to justify the procedure itself rather than the way in which it was applied to Mr Buchanan.

The EAT disagreed with the Tribunal. It was the treatment of the employee that needed to be justified, the EAT said. In this case, the treatment was the application of the UPP to Mr Buchanan. The UPP didn’t say that the employer should place the demands it did on an employee in Mr Buchanan’s position. That being the case, the employer needed to be able to justify its action in doing so.

So, in this sort of situation, remember it may not be enough to point to a decent policy. The way in which you applied that policy will be under scrutiny when it comes to justification. It won’t always be an easy distinction to follow in practice, and it’s worth taking advice if you think you might be at risk of a claim.

Ms Sandle was an agency worker employed by the recruitment and employment business, Adecco, which provides temporary agency workers to its clients.

When the assignment Ms Sandle had been working on came to an end, Adecco didn’t take proactive steps to find other work for her. It made little attempt to contact her (nor did she make any attempt to contact Adecco). Adecco assumed that she wasn’t interested in any more agency work, but didn’t check.

Ms Sandle’s unfair dismissal case depended on her having been dismissed by Adecco. Had she been? No, held the Tribunal. Adecco hadn’t communicated a dismissal and so the employment relationship was ongoing when she issued her claim.

The Employment Appeal Tribunal agreed. Although dismissal can sometimes be implied from the way an employer has acted, the employer still needs to have communicated its unequivocal intention to dismiss the employee. Communication might be by conduct, but the important thing is that the employee is aware of it.

However, had Ms Sandle chosen to resign in response to Adecco’s failure to use its best efforts to promote her to its clients to maximise her assignment opportunities, that might well have been a constructive dismissal.

Mr Dahhan entered into a settlement agreement with his employer, Glasgow City Council, after issuing various race-related claims against it. That agreement purported to draw a line under his claims; in signing it, Mr Dahhan was giving up all claims arising from his employment. He withdrew his race claims and they went on to be dismissed by the tribunal.

However, he then asked for that to be reconsidered. He said that he had lacked mental capacity and therefore wasn’t equipped to sign the settlement agreement. The question for the Tribunal was whether it could set aside the agreement for being invalid on that basis.

Yes, the Tribunal said, and the Employment Appeal Tribunal agreed. Where a party argues incapacity, the tribunal must look carefully into that. If that incapacity is found to have existed, the agreement must be unenforceable.

A cautionary tale for employers, keen to ensure that a settlement agreement does its job. Any hint of mental incapacity should ring alarm bells, not least because it could scupper the deal and the certainty that settlement is supposed to achieve.

A recruitment agency has been in the news for the wording it has used in job adverts.

One, for a personal assistant/private plane flight assistant, reportedly required ‘a classic look, brown long hair with b-c cup’. The company is reported to have had its reasons for advertising in those terms. Criticism has come from various quarters, with the Chief Executive of the Equality and Human Rights Commission, Rebecca Hilsenrath, describing this sort of advertising as, “appalling, unlawful and demeaning to women”.

Also in the news was a survey that revealed a lack of knowledge among employers when it comes to the laws around recruitment. The Equality and Human Rights Commission found that only 39% of businesses know that it is against the law to advertise a job vacancy just in one foreign language where that language isn’t required in order to do the job. The survey also revealed that employment checks are not being properly performed; less than 50% of those that took part in the survey said they knew that employers must check that all job applicants have a right to work in the UK, irrespective of their place of birth, before taking them on. You’ll find plenty more interesting statistics here.

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