Employment Law 2017 Review: Another Year Over...

A year dominated by the shadow of Brexit. Despite legislative developments being placed firmly in Brexit's shadow, the courts have made this a landmark year for employment law. The defeat of the Government's 2013 introduction of tribunal fees is now a constitutional law case study being taught to thousands of law students around the country.

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Not merely a landmark but a historic judgment. The Supreme Court in in R (on the application of UNISON) v Lord Chancellor, gave the Lord Chancellor a lesson on the constitutional importance of the rule of law. The Supreme Court reminds the Government:

"At the heart of the concept of the rule of law is the idea that society is governed by law… Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other."

As for tribunal fees, their introduction was unlawful on the basis they had the effect of preventing access to justice and were indirectly discriminatory.

The Supreme Court also stated "employment law is characterised by a relatively high level of complexity and technicality". This has been repeatedly illustrated this year with important judgments in areas including whistleblowing, worker status, holiday pay, discrimination and national minimum wage.

We leave the enormity of the Government's defeat on tribunal fees to constitution law lectures for the moment and instead reflect on our pick of the 2017 employment case law lessons to remember.

Whistleblowing: The Great British [Interest] Off; Master [behind the] chef; Ramsay's [Workplace] Nightmares Worker Status: Cake Boss Holiday: I'm a worker get me [holiday pay]; The X[tra] Factor On Call Time: The [Sleeping] Night Manager Agency Workers: The Constant [Agency Worker] Termination: Have I got [old] news for you; The Only Way is [not Suspension]; Never Mind the [Process Label]; Would I lie to you? Contract: The Apprentice - You're fired; Temptation Island Restrictive Covenants: Strictly come [drafting] Trade Unions: Countdown; 8 out 10 [Union Members] Tupe: Outnumbered; Peter Kay's [Information] Share Equality: On Her Majesty's [Civil] Service; Dr [Computer says] No; A View to a [pre-existing vulnerability]; [Prove] and Let [Unprove]; The [Part time] World Is Not Enough; License to [Ban?]; The Man with the Golden [Enhanced pay]; Quantum of [Risk] Data Protection: Big Brother; Hunted [Information] The 2017 Awards (drum roll please)… Whistleblowing

Back in June 2013, the Public Interest Disclosure Act 1998 was revamped. Significant new provisions were introduced. The changes included a new requirement that the individual has a reasonable belief that they are making the relevant disclosure in the public interest, extension of the definition of 'workers' for whistleblowing purposes, and co-workers' liability for victimisation with corresponding employer vicarious liability.

This year we have learnt just how significant or not these changes have been.

The Great British [Interest] Off

At the time the revamp was introduced, the public interest test change was expected to have the biggest impact. Would the change bring an end to individuals benefitting from whistleblowing legislation when relying on a self-serving disclosure of a breach of their own contract of employment?

Like the hype regarding the move of the Great British Bake Off from the BBC to Channel 4, yes there is a change but the impact of the change is far less than anticipated.

In July the Court of Appeal agreed that an employee fulfilled the public interest test, despite his primarily personal motivation in doing so. His disclosure regarded alleged manipulation of profit and loss accounts by his employer that negatively affected his and 100 other senior mangers' commission payments. The tribunal had identified a number of features that made it reasonable to regard his disclosure as being in the public interest as well as in his personal interest, specifically:

the number of employees affected; the nature of the wrongdoing, which involved large sums of money; the nature of his employer's business; and the fact that it was deliberate. The Court of Appeal decisions suggest that the introduction of the 'public interest' requirement may not be as significant a change as many commentators anticipated. Even in cases where the individual is primarily concerned with their own self-interest, there is potential for the individual to establish a belief that it is made "in the public interest", by referring to concern for colleagues who may find themselves in a similar positon. 'The public' for these purposes do not necessarily need to be outside the employer's workforce (Chesterton Global Ltd (t/a Chestertons) v Nurmohamed).

Master [behind the] chef

The 2013 change that has had a very significant impact this year is the introduction of co-worker liability for victimisation with corresponding employer vicarious liability.

Where an employee is dismissed, it will be automatically unfair if the principal reason for the decision to dismiss was that they made a protected public interest disclosure. But what if the decision-maker is being manipulated by another? In the case of Royal Mail Ltd v Jhuti, the dismissing officer was unwittingly misled by the employee's line manager. The Court of Appeal confirmed that in the context of a whistleblowing unfair dismissal claim, even where manipulation has taken place, it is only the mental processes of the person or persons who was or were authorised to, and did, take the decision to dismiss that is relevant. Unfair or even unlawful conduct on the part of individual colleagues or managers is immaterial unless it can properly be attributed to the employer. But there is a twist…

While there may be no unfair dismissal, the individual (i.e. the manipulator) behind the detriment suffered will be open to a 'dismissal consequent on detriment' claim with the employer potentially vicariously liable (subject to any reasonable steps defence).

Whether the statutory provisions allow a 'detriment' claim to be brought, where the detriment complained of is dismissal, is controversial. However both the Court of Appeal in Jhuti and the Employment Appeal Tribunal (EAT) in International Petroleum Ltd v Osipov held this year that 'dismissal consequent on detriment' claims are possible.

Ramsay's [Workplace] Nightmares

Also on the whistleblowing front, we have learnt that it is irrelevant that an employer genuinely believed that an employee's disclosure did not amount to a protected disclosure (Dr Beatt v Croydon Health NHS Trust). While this sounds straightforward, determining whether a protected disclosure has been made can prove tricky when dealing with, shall we say, those with 'difficult' and 'challenging' personalities in what the tribunal described as a 'dysfunctional' work environment.

Worker Status

Uber, Deliveroo, CitySprint, Pimlico Plumbers, the list goes on… Whether individuals are independent contractors or workers for employment law purposes continues to be a hot topic. Since the 2016 landmark tribunal decision that Uber drivers are workers (despite Uber's best efforts at drafting bamboozling contractual clauses) there has been a growing list of new claims and appeals.

Referred to as the gig economy cases, what the various cases have in common is a business model under which operatives are intended to appear to clients of the business as part of the business. However, at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor, rather than employer and employee or worker.

Cake Boss

We began the year with Smith v Pimlico Plumbers. Here, the Court of Appeal upheld the EAT's decision that a plumber, who was self-employed for tax purposes, was nevertheless a 'worker' for unpaid holiday pay and unlawful deduction of wages claims and an 'employee' under the equality legislation extended definition.

The Court of Appeal agreed the tribunal correctly concluded that the plumber was under an obligation to provide his services personally as there was no express or implied right of unrestricted substitution or delegation. Also, Pimlico could not be considered to be a client or customer of the plumber's business but was better regarded as a principal. The individual plumbers were an integral part of Pimlico's operations and subordinate to Pimlico.

Interestingly the Court of Appeal held a conditional right to substitute (in the sense of being limited or occasional) is not necessarily inconsistent with personal...