Parties to an employment contract where illegal activity has occurred may be prevented from bringing employment related claims. Where an employment contract has been entered into lawfully, but then illegally performed, the enforceability of the contract will depend on the parties’ knowledge of, and active participation in, the illegal conduct. The Court of Appeal has previously found that an employee who unknowingly worked in breach of immigration rules was not stopped from enforcing her contract (Akedina v Chilake). The Court of Appeal has looked at this issue again recently in Robinson v His Highness Sheikh Al Qasimi.
The Supreme Court handed down a final judgment in the Asda equal pay saga. In Asda v Brierley, a predominantly female group of Asda store workers are saying they should be paid the same as a group of predominantly male distribution depot workers who are paid more than them. The proposed comparators work at different ‘establishments’ – the claimants work in Asda stores and the comparators in Asda distribution depots. Section 79(4)(c) Equality Act 2010 says that if equal pay comparators do not work at the same workplace, then the employees must be on ‘common terms’ of employment to bring an equal pay claim. ‘Common terms’ isn’t defined in law, but case law has shown that the ‘common terms’ test is met where:
The employment tribunals have handed down more judgments this month in relation to Covid-19 related dismissals. In Accattatis v Fortuna Group, the employee worked for a company which sold PPE. In March and April 2020, he told his employer he was uncomfortable travelling on public transport and working in the office. He repeatedly asked to either work from home or be furloughed. The employer said the business was too busy for furlough and the job couldn’t be done at home. However, they said he could take holiday or unpaid leave. The employee refused, and when he continued making the same requests, he was dismissed.
Should employers be allowed to fire and rehire? In economically hard times, or when a business is restructuring, the ability to change employment terms can be an essential tool. The law does not allow an employer to change employment terms unilaterally, so giving lawful notice and offering a new contract in return is a safer option. It does create a dismissal though, which may be unfair. Unfair dismissals are often defended on the basis of SOSR – some other substantial reason – but the business need only have a ‘sound business reason’ for the contract change, as well as behaving reasonably overall. Is banning a perfectly legitimate process – lawfully ending one contract and offering another – really the answer?
Direct discrimination happens if an employer treats an employee less favourably than it treats others because of sex. A female employee would need to show that she has been treated less favourably than a real or hypothetical comparator of the opposite sex whose circumstances are not materially different to hers. In Ali v Capita Management, the Court of Appeal decided that a man on shared parental leave could not compare himself to a woman on maternity leave who was paid more than him. The Court of Appeal said that the purpose of maternity leave goes beyond childcare and centres around the health and wellbeing of the pregnant and birth mother. Mr Ali’s claim failed because his circumstances were materially different to his comparator’s. The correct comparator was a woman on shared parental leave. The EAT has recently considered a similar case, this time involving a man on shared parental leave and a woman on adoption leave.
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) provides protection to employees taking part in trade union activities including industrial action. TULCRA provides an absolute ban on dismissing an employee for taking part in industrial action, but there is no ban on subjecting employees to a detriment short of dismissal on the same grounds. Section 146 TULCRA protects employees against detriment for taking part in ‘trade union activities’ but not industrial action. Article 11 of the European Convention on Human Rights (ECHR) guarantees the right of workers to join a trade union. UK law must be interpreted in a way which gives effect to the ECHR.
There has been a massive overhaul of the UK’s immigration rules as part of the UK’s exit from the EU and the end of free movement for EU citizens in the UK.
New Points Based System
From the start of 2021 EU and non-EU citizens are now treated the same in terms of immigration law (save for Irish citizens who can still freely enter, live and work in the UK). According to the Government website, “the new points based system aims to attract people who can contribute to the UK’s economy.”
It is commonplace to negotiate severance terms before an employee leaves employment due to redundancy. Discussions usually agree the sums to be paid and formal settlement agreements are signed to create a clean break between the parties.
The EAT has recently looked at a case where the parties had different ideas about what had been agreed, as well as what could be enforced.
Section 44 of the Employment Rights Act 1996 protects employees from employer detriment in certain health and safety cases: if they are absent from work because they reasonably believe that attendance would put them in serious and imminent danger or take appropriate steps to protect themselves if they reasonably believe they are in serious and imminent danger.
The right currently only extends to employees, rather than the wider definition of workers.
The Court of Justice of the European Union (CJEU) has considered two cases involving workers on standby and whether the whole of the standby period should be considered working time. The Working Time Directive says that working time is any period where the employee is working, at the employer’s disposal and carrying out their duties. A rest period is any period which is not working time.
The CJEU has previously found that standby time can be working time if the employee must be physically at the workplace (or another place determined by the employer) and able to provide services immediately if required. Another case, Ville de Nivelle v Matzak, said time spent by firefighters on standby at home was working time because they were required to be at home by the employer and to respond within 8 minutes. This put significant constraint on what they could do in terms of social and personal interests during that time.
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