These seminars are aimed at anyone who deals with employment law on a day to day basis, including HR Managers and HR Directors. At these events we will present an overview of what we consider to be the most significant developments in 2019, and what they teach us about managing your workforce – together with our practical tips. You will also hear about what is coming up in 2020, and how you can get ready for what will be another busy year in employment law.

1. Annual Employment Law Update
Rachel Billen Senior Associate
Bridget Prosser Partner
6 February 2020

2. 1
Today’s plan
• Employment status
• Holiday pay and working time
• Discrimination
• Disciplinary and dismissal issues
• Future developments

3. 3
Status tests
Established Case
Law
Taylor Review
and the Good
Work Plan
Future
Developments

4. 4
2019 status cases
• Pimlico Plumbers returned to the ET.
• National Gallery “freelancers” were found to be workers.
• Uber has appealed to the Supreme Court.
• The ET has sought assistance from the CJEU in respect of Yodel
Couriers.
• A Great British cyclist appealed to the EAT.
• Decisions in respect of foster carers are awaited.

5. 6
Recording working time
Federación de Servicios de Comisiones Obreras v
Deutsche Bank SAE
Considered under the Working Time Directive by the CJEU:
It would be “excessively difficult if not impossible” for workers to ensure
compliance with their rights in respect of maximum working hours, weekly and
daily working limited, and weekly rest periods, if an employer was not required
to keep records of the hours worked.

6. 7
Voluntary overtime
Flowers v East of England Ambulance Trust
The Court of Appeal has confirmed that voluntary overtime should be taken into
account when calculating holiday pay provided that it is sufficiently regular and
settled for the payments made in respect of it to amount to “normal”
remuneration.

7. 8
Breaks in series
Chief Constable of Northern Ireland Police v Agnew
In this case, the Court of Appeal in Northern Ireland held that a gap of more
than 3 months did not break the series of deductions for holiday pay purposes.
NB – this case is not formally binding on tribunals in England, Wales and
Scotland but may be persuasive.

8. 9
Term time workers and holiday pay
The Harpur Trust v Brazel
Question asked:
Should holiday entitlement for a part-year worker be calculated on a pro-rata
basis at 12.07% of annual pay under the Working Time Regulations?
Court of Appeal’s response:
No.

9. 10
Holiday and sickness absence
TSN v Hyvinvointialan liito ry
Where employees are granted more leave than the minimum 4 weeks’ granted
by the Working Time Directive but are unable to take their leave due to
sickness, are they allowed to carry forward all leave or just the 4 weeks’
minimum?
CJEU – there is nothing in the Working Time Directive which prevents national
rules or collective agreements from restricting the carry forward of leave above
the 4 weeks’ minimum.

10. 12
Quick-fire questions
Question 1
Does less favourable treatment by reason of the employer’s religious beliefs
(rather than the employee’s own beliefs) amount to direct discrimination?

11. 13
Quick-fire questions
Question 2
An employee has a disability which is exacerbated by cold and damp conditions.
The employee is asked to move workstations but refuses on the grounds that
she believes it will exacerbate her disability. She is wrong in this belief. Can
this amount to less favourable treatment?

12. 14
Quick-fire questions
Question 3
It is established by case law that “costs alone” cannot amount to sufficient
objective justification. Is it possible for “the absence of financial means” to be
capable of justifying indirect age discrimination?

13. 15
Quick-fire questions
Question 4
For discrimination purposes, is there a difference between the manner in which
religious beliefs are expressed and the religious beliefs themselves?

14. 16
Quick-fire questions
Question 5
If a Tribunal makes a finding of a one-off act of discrimination, will
compensation for injury to feelings always fall within the lower Vento band?

15. 17
Quick-fire questions
Question 6
Is it discriminatory to pay men on shared parental leave less than an enhanced
rate paid to women on maternity leave?

16. 18
Quick-fire questions
Question 7
Can a belief that sex is set at birth and cannot be changed amount to a
philosophical belief?

17. 19
Quick-fire questions
Question 8
Can a belief that animals should not be bred, caged or killed for the purposes
of food amount to a philosophical belief?

18. 21
Suspension
London Borough of Lambeth v Agoreyo
This case concerned allegations of breach of contract pursued in the
civil courts following the Claimant’s suspension.
The Claimant alleged that her suspension amounted to a breach of the
implied term of trust and confidence.
County Court – no breach.
High Court – breach.
Court of Appeal – no breach.

19. 22
Police investigations
North West Anglia NHS Foundation Trust v Gregg
In almost all circumstances, it will not be necessary to postpone a disciplinary
hearing pending the outcome of a police investigation into an employee.

20. 23
Poor investigations
Aplin v The Governing Body of Tywyn Primary School
A headteacher met two 17 year old males (still classed as children, by law) on
Gindr and the three of them had sex. Despite a tribunal finding that the
headteacher could have been disciplined for his admitted conduct, he was
awarded £700,000 in compensation for a constructive unfair dismissal and
discrimination claim. What went wrong for the employer?

21. 24
Amending reports
Dronsfield v University of Reading
Did amending an investigation report to remove comments favourable to the
employee render the subsequent dismissal unfair?
EAT – not in this case.

22. 25
Covert recordings
Phoenix House v Stockman
It transpired during the course of employment tribunal proceedings that the
Claimant had covertly recorded an internal meeting. The Respondent, having
lost on liability, sought to have compensation reduced to nil on the grounds
that, had it known about the covert recording at the time, the Claimant would
have been dismissed for gross misconduct.

23. 26
Whistleblowing and reasons
Royal Mail Group Ltd v Jhuti
Which reason is important in disclosure cases – the hidden reason or the
invented one?
Supreme Court: the hidden reason

24. 28
April changes (1)
Statements of Particulars
• Employees and Workers
• Day 1 right
• New timescales
• Additional information required
Holiday Pay Averages
Where averaging is required:
• Period will increase from 12 to 52 weeks
• “No remuneration” weeks still to be
disregarded
• 104 week back-stop

25. 29
April changes (2)
IR35
• Shift of responsibility (and risk) from B to A for determining status
and dealing with tax.
• Applies to large and medium sized companies.
A – End User or
Client
B – Limited
Company
C – Individual who
works for Limited
Company

26. 30
IR35: Verify
• Suite of services designed to assist you re IR35
• Review of your existing arrangements to identify areas of concern where there may be
a risk that an IR35 Contractor is a disguised employee.
• Includes:-
• Training
• Communication
• Contracts
• Audit services

27. 31
April changes (3)
Agency Workers
Information and
Consultation
Increase in
Limits
Termination
Payments and NICs

28. 32
Future Cases
Vicarious Liability and Data Breaches - Various v WM Morrisons Supermarket
Equal Pay - Asda v Brierley
Sleep-ins - Royal Mencap Society v Tomlinson-Blake
Employment Status - Uber BV and others v Aslam and Others
ShPP and Discrimination - Ali v Capita Customer Management Ltd; Hextall v
Chief Constable of Leicestershire Police
Holiday Pay – The Harpur Trust v Brazel
Holiday Pay - Chief Constable of the Police Service of Northern Ireland and
another v Agnew and others

29. 33
Queen’s Speech December 2019
Workforce related proposals:
• Modern, fair, points-based immigration system.
• New visa for qualified doctors, nurses and health professionals.
• Raise the National Insurance threshold and the National Living Wage.
• Measures to encourage flexible working.
• Leave for unpaid carers.
• Establish a National Skills Fund.
• Minimum service levels during transport strikes.

30. 34
Other changes on the horizon?
• Good work plan – status.
• NDAs and workplace harassment and discrimination.
• Ethnicity pay reporting.
• Tribunal fees.
• Grandparental leave.
• Parental bereavement leave and pay.
• Public sector exit payments.

31. 35
Any questions?

32. 37
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33. All information correct at time of production.
The information and opinions expressed within this document are no substitute for full legal advice. It is
for guidance only and illustrates the law as at the published date. If in doubt, please telephone us on 0370
270 6000.
© Browne Jacobson LLP 2020 – The information contained within this document is and shall remain the
property of Browne Jacobson. This document may not be reproduced without the prior consent of Browne
Jacobson.