New regulations and cases to watch
It seems rash to make firm predictions after the events of last year, although employment law change seems more likely to be a case of ‘steady as she goes’ than ‘full steam ahead’ in 2017. Nevertheless, organisations should be prepared for several important legislative and case law developments this year, and there are hints that the current government could take a more interventionist approach to employment rights in the longer term.
Changes to legislation
The key legislative change larger employers should be preparing for is the introduction of the Equality Act 2010 (Gender Pay Gap Information) Regulations, which are expected to come into force on 6 April. These require private and third sector employers with 250 or more employees to report annually on their mean and median gender and bonus pay gap, on the proportion of men and women who receive bonuses, and on the proportion of men and women in each pay band quartile. The first reports, based on April 2017 pay data, are due to be published in 2018.
Case law developments
Employers should be watching two cases in the Court of Justice of the European Union (CJEU) carefully. Achbita v G4S Security Solutions NV and Bougnaoui v Micropole Univers consider whether a corporate dress code that prohibits visible religious, political and philosophical symbols at work, including the Islamic headscarf, is direct or indirect discrimination. The Advocates General giving their legal opinions in the cases took very different approaches – one concluding that a ban was indirect discrimination and probably justified (Achbita), and the other (Bougnaoui) that a ban was direct discrimination (for which a justification defence will generally not be available). The existing approach in the UK treats a ban on religious symbols at work as indirect rather than direct discrimination, so the CJEU’s decision in the cases could be significant.
The Court of Appeal will consider whether a complaint that affects a relatively small group of employees can be classed as ‘whistleblowing’. To satisfy the legal requirements of the legislation that protects whistleblowers, a disclosure must be made ‘in the public interest’. In Chesterton Global v Nurmohamed, an employee complained about the way in which his commission was being calculated. The issue affected around 100 other senior managers. The EAT decided that his disclosures were made ‘in the public interest’ because the employee had the other managers in mind when raising his concerns, even though he was mainly concerned about his own position. The case will be heard in June.
Another case to watch is Pimlico Plumbers v Smith, in which the Court of Appeal will consider the employment status of a worker who was classed as self-employed but who was presented to clients as part of the workforce. The claimants in the case wore uniforms, drove branded vans and issued contracts and estimates in the name of the company. However, the contractual arrangements described them as self-employed. The EAT concluded that, although the claimants were not employees, they were not self-employed either, but fell into the intermediary category of ‘worker’. That decision is now being appealed.
Since becoming prime minister, Theresa May has pledged in a number of speeches to ensure that the labour market and wider economy work “not for a privileged few but for everyone”. A government-commissioned review by Matthew Taylor into the modern world of work is designed to ensure that those working in new business models have the right balance of flexibility, rights and protections. The government seems keen to balance fairness to employees – in the widest sense of the word – with a flexible labour market.
The government has also published a green paper on corporate governance reform, examining executive pay, extending corporate governance requirements to large, privately owned companies and strengthening the voice of workers and other stakeholders on boards. Although the government has decided not to require companies to have worker representatives on boards, there is a suggestion that organisations will be required to strengthen the way in which employee interests are taken into account at board level.
Taken together, these actions suggest that we may see developments in worker rights over the next year, as the government tries to ensure that the system works, and is seen to work, for the many, not the few.
Story via – http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/01/03/what-employers-should-be-looking-out-for-in-2017.aspx