May 2017 Employment Highlights

This month, read on for the importance of getting timing right in appeals when a case was not accepted at an EAT, even though it was just one hour late. Concerns about the ‘gig’ economy and holiday pay for those on zero hours contracts. Also, what happens if an employee makes a protected disclosure and you don’t realise that it is actually a protected disclosure – does it make a difference?

Next month sees a decision as to whether employees who decide not to take holiday are entitled to carry it over into the next holiday year – even if their contract states that they can’t.

Discrimination. The EAT has upheld the decision of an employment tribunal that a job applicant with Asperger’s required to undertake a multiple choice test suffered indirect discrimination when the employer refused to make an adjustment to the format of the test.

Employment Appeal Tribunal. The EAT refused to exercise its discretion to extend the time limit where an appeal was submitted an hour late.

Gig economy. The Work and Pensions Committee published a report into the growth of self-employed workers in the gig economy. It concludes that many companies are using self-employed workers as cheap labour while excusing themselves of responsibilities towards workers. The report recommends that national insurance contributions are equalised, self-employed people are encouraged to save for pensions and the default position should be that individuals have the status of workers.

Holiday pay. The EAT has confirmed that a three-month gap between underpayments of wages breaks a “series of deductions”, limiting the scope to make retrospective claims for unpaid holiday pay under the unlawful deduction from wages jurisdiction. In doing so, the EAT has affirmed the 2014 decision of Mr Justice Langstaff in Bear Scotland Ltd v Fulton and another [2015] IRLR 15.

Whistleblowing. The Court of Appeal has decided that, in a whistleblowing dismissal caseit was irrelevant that an employer genuinely believed an employee’s disclosure was not protected. A disclosure will be protected if it meets the statutory conditions in Part IVA of the Employment Rights Act 1996 and this is an objective test.

In the news, Matthew Taylor called for an end to “bad work” ahead of his review, half of people on zero hours contracts believe they are not entitled to holiday paysickness absence is at the lowest since records began, Deliveroo removed the controversial clauses in their employment contracts. 


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