Gordons Legal Employment Update – 20 July 2017

Discrimination

In the case of Trustees of Swansea University Pension & Assurance Scheme & Anor v Williams, the Court of Appeal (‘COA’) considered the meaning of ‘unfavourable treatment’ for the purpose of a claim for discrimination arising in consequence of that disabled person’s disability under section 15 of the Equality Act 2010.

By way of background, the Claimant took ill-health retirement at 38, and received his pension immediately. The Claimant’s pension was based on his part-time salary, which the Claimant had worked before retiring to accommodate his disabilities.  The Claimant claimed that the failure to pay him the equivalent full-time pension was unfavourable treatment in consequence of something arising from his disability.

The COA concluded that, just because the Claimant received a lower pension because he worked part-time before the end of his employment due to his disability, that did not mean that he had suffered discrimination because of something arising in consequence of his disability.

The COA set aside the order for remission to the employment tribunal, dismissing the claims.

Comment: This is the first time that the COA has considered the meaning of ‘unfavourable treatment’ which is used in the Equality Act 2010. The judgment confirms that if treatment is favourable it does not mean that it is unfavourable just because it could have been even more favourable in other circumstances.

Taylor Review

The Taylor Report has now been published and below is a list of some of the proposals:

• Worker Status –
  • “Worker” status should be renamed “dependent contractor” status.
  • If someone is deemed “employed” for tax purposes by a tribunal, that decision is binding for employment law purposes.

• Terms of Employment –
  • A statutory requirement for both employees and dependant contracts to receive a written statement of employment particulars on day one of their job.
  • The right for both employees and dependant contracts to bring a claim for compensation against an employer for failure to provide a written statement.

• Wages –
  • Consideration by the Low Pay Commission to introduce a higher national minimum wage rate for hours that are not guaranteed as part of a contract.
  • The 12-week reference period for holiday pay should be extended to 52 weeks and should be made equal for individuals who have peaks and troughs in work.

• Employment Rights –
  • SSP should become a basic employment right and all workers should be eligible for it from day one.
  • Where certain employment rights demand a period of continuous employment before an individual is eligible, it should be made easier for dependant contractors or gig workers to demonstrate continuous service.

• Tax and national insurance –
  • If NI contributions from the self-employed are raised, then there should be a conscious improvement in pension provisions and family-friendly rights for them.
  • Cash-in-hand payments for jobs should be phased out and replaced with electronic transactions via platforms such as PayPal.

If you would like to read the full report then you can access it here.

Whistleblowing

In the case of Chesterton Global Ltd v Nurmohamed, the COA held that a disclosure which is in the private interest of the worker making it can potentially, dependent on the facts, become in the ‘public interest’ because it also serves the (private) interests of other workers as well.

The COA held that the mere fact something is in the worker’s private interests does not prevent it also being in the public interest.  The COA adopted four criteria as a starting point, but noted that it will be fact specific:

1. The numbers in the group whose interests the disclosure served;

2. The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed;

3. The nature of the wrongdoing disclosed; and

4. The identity of the alleged wrongdoer.

The COA emphasised caution that tribunals should be careful to find that matters affecting just people within a workforce is a ‘public interest’ disclosure, more than likely there will be other factors present which might be enough to qualify a disclosure as the public interest.

Comment: The definition of what amounts to a protected disclosure changed with the introduction of the Enterprise and Regulatory Reform Act 2013. At that time, the government intended to close a loophole in the whistleblowing legislation that allowed individuals to lodge a whistleblowing claim in relation to matters purely of private rather than public interest. However, the 2013 amendment, which stated that the worker must hold a reasonable belief that the disclosure is made in the public interest, was always ambiguous enough to be interpreted more broadly and that is what the courts have been doing ever since. This case is a further example of the courts broadening the ‘public interest’ definition to include the private interests of a group of employees.

ACAS Early Conciliation

In the case of Giny v SNA Transport Ltd, the Employment Appeal Tribunal (‘EAT’) held that a claim should not be allowed to proceed, in cases where a director was named on the ACAS Early Conciliation form and then the Company was named on the Claim Form.

By way of background, the Claimant brought several claims against his former employer. Initially he was unrepresented and contacted ACAS to commence Early Conciliation and named the director as the prospective Respondent. Shortly after, the Claimant instructed solicitors to prepare his Claim Form and the Respondent was correctly named as ‘SNA Transport Limited’.  The Claimant’s claim was rejected by the Employment Tribunal as the Respondent had not been correctly identified on the Early Conciliation Certificate.  The Claimant applied to the Employment Tribunal to reconsider that decision on the basis that the use of the director’s name was a ‘minor error’.

The EAT rejected the Claimant’s application.  It stated that there is a two stage test to be complied with:

1. Was it in error?

1.1 If not, the Claim would be rejected.

2. f it was, the Tribunal should go on to consider whether or not it was in the interest of justice to allow the claim to proceed.

Although, each case should be considered on its facts, and as there was no error in the Tribunal’s Judgment, the Claimant’s appeal was dismissed.

Comment: This case emphasises the importance for Claimant’s to ensure that the identity of the Respondent is correctly named at Early Conciliation stage.

Equal Pension Rights

In the case of Walker v Innospec, the Supreme Court ruled that same sex couples should receive the same pension rights and entitlement as those in heterosexual marriages.

The Claimant made the same contributions to the pension scheme as heterosexual colleagues.  He entered a civil partnership with his now-husband in January 2006.  The Respondent refused to pay a full spousal pension, because the Claimant’s service began before 5 December 2005.  The Claimant won an Employment Tribunal case in 2010 to secure his pension rights, but in 2015 this decision was overturned.

The Supreme Court has now ruled than an exemption in the Equality Act 2010, which allows employers to exclude same sex partners from spousal benefits paid into pension funds before December 2005, is discriminatory and breaches EU equality laws. It held that the Claimant’s husband is entitled to a spouse’s pension, provided they remain married.

Comment: This judgment will have significant effect meaning that same sex couples will now enjoy the same pension rights and entitlements as those in a heterosexual marriage.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.