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John Bowers QC on Employment Law: February Blog

The following commentary is the latest in a series of Employment Law blog posts by John Bowers QC.

Gig economy proposals
The Government’s primary response to the Taylor Report on Good Work is to set up a series of further consultations. The primary headline in the press the next day was that the Government would introduce holiday and sick pay rights from day one of employment and a right to a payslip for those engaged in the so called gig economy (including casual and zero hours workers). The TUC’s comment that this was a “baby step” is apposite given the scope and ambition of the Taylor Review. It is also odd to set up a review with distinguished figures and then consult about it.

These consultations will consider enforcement of employment rights recommendations; agency workers; measures to increase transparency in the UK labour market and employment status. The last is the most crucial and overdue.

Two matters which are absent from the Government’s considerations which I think should be on the agenda are

  • A statement of terms for all workers not just employees;
  • The introduction of a fast track in the ET and EAT for mass cases raising issues of employment status.

The next point of interest will be the Supreme Court Judgment in the Pimlico Plumbers case being heard this week.

S15 Equality Act 2010
As is well known, the disability provisions go beyond direct and indirect discrimination to prohibit discrimination at one remove or as it is described in the title to s15 Equality Act 2010 “discrimination arising from disability”. The section itself speaks of B being treated unfavourably “because of something arising in consequence of B’s disability”. There is then a justification defence. The employer must also be aware of the disability. These precise provisions were new in 2010. There are thus two key issues; what is the degree of causal connection and what does being treated unfavourably mean.

In Private Medicines Intermediaries Ltd. v. Hodkinson UKEAT/0134/15/LA, per HHJ Eady QC, the EAT said that the use of the words “because of” in s15(1)(a) had to be approached in the same way as elsewhere in the statute (paragraph 25) and that the question required to be asked was whether the employer meted out the treatment in question (here, the dismissal) “because of the something arising” (paragraph 24 of Private Medicines). This is accurately described as “the why question”. Most recently in Charlesworth v. Dransfields Engineering Services Ltd. UKEAT/0197/16/JOH, the EAT re-emphasised that in considering whether the unfavourable treatment (e.g. the dismissal) was because of the relevant “something”, the question is whether there is an “influence or cause that does in fact operate on the mind of the putative discriminator whether consciously or subconsciously to a significant extent and so amounts to an effective cause”  (paragraph 14 of Charlesworth, citing IPC Media [2013] IRLR 707). The mere fact that there was a link between the something arising from the disability and the dismissal, did not necessarily mean that the former was an effective cause of the latter (paragraph 18 of Charlesworth) (see also Pnaiser v NHS England [2016] IRLR 170).

The Court of Appeal decision in Trustees of Swansea University Pension and Assurance Scheme and another v Williams [2018] ICR 233 is the first case to consider the meaning of unfavourable treatment which is the other key part of the s15 provision. This is an unusual concept in discrimination law since the provisions usually require a comparison i.e. someone is treated less favourably than another on the grounds of a protected characteristic.

The court held that a disabled person was not subjected to unfavourable treatment within the meaning of section 15 of the Equality Act 2010 simply because he thought that he should have been treated better; here however the employer’s pension scheme was fashioned, some people would do better than others. Where an employer’s pension scheme conferred advantages on a disabled employee who had to move from full-time to part-time working and subsequently take early retirement due to his disability, but whose position would have been more advantageous or favourable had he had a disability that struck suddenly and involved no intermediate period of part-time working, the employee was not treated “unfavourably” for the purposes of section 15(1) (a);

On unfavourable treatment Langstaff J had said:

“27. … the meaning of the word ‘unfavourably’ cannot, in my view, be equated with the concept of ‘detriment’ used elsewhere in the Equality Act 2010. The word ‘unfavourably’ is deliberately chosen. So, too, the choice not to use the word ‘detriment’ must be assumed to be deliberate: the draftsman would have been well aware of the use of the word ‘detriment’ elsewhere within the Equality Act, and avoided it. Nor, as the parties were agreed, does the word ‘unfavourably’ require a comparison with an identifiable comparator, whether actual or hypothetical, as would the description ‘less favourable’. ‘Less’ invites evidence to be provided in proof of ‘less than whom?’; ‘un …’ is by contrast to be measured against an objective sense of that which is adverse as compared with that which is beneficial.”

This was upheld by the Court of Appeal as an accurate statement of the law.

Industrial action and interim relief
In industrial action cases, the claims rarely go to full trial because the employer will not want to interfere with the industrial calm, which has been restored after the end of the dispute. The courts however still apply the principle that it will not finally decide the case and have said that it is important that the court should not attempt to resolve critical disputed questions of fact or difficult points of law on which claims of either side will ultimately depend (Sukhoruchkin v van Bekestein [2014] EWCA Civ 399).

The court has to engage in essence in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice and to what extent if it turns out that the injunction should not have been granted or withheld as the case may be (National Commercial Bank Jamaica Ltd v Olint Corpn Ltd UKPC 16).

The central idea is that the court is involved in a holding operation pending trial. It is also important that cases should not be tried twice, at the interim stage and then at full trial. There has long been academic criticism of this approach as unrealistic in industrial action cases. A more realistic approach has now been taken in Secretary of State for Education v NUT [2016] IRLR 512 which was actually an application for an urgent interim declaration that planned industrial action (at 92 sixth form colleges) was unlawful. The dispute was about increasing the funding for sixth form colleges. The issue of law was whether there was a dispute with the school employers as well as the Secretary of State.

The court applied the same principles in this application for an interim declaration under CPR 25.1(1) (b) as it would have done in an application for an interim injunction. The necessary balance to be struck was between the severe disruption if the action goes ahead and put in the balance on the other side that it may be too late for the strike to be effectively put back on when the House of Lords (now the Supreme Court) might put the matter right some time later as happened in the case of ABP v TGWU [1989] IRLR 399. Kerr J at para 84 said “An interim declaration wrongly granted now would probably in practice defeat the exercise of such rights as the NUT has to call a strike without infringing the law”. The court also considered that an interim declaration was very useful as the best way for the question of the lawfulness of the strike to be speedily determined.

It is however worth noting a very recent case Day and Another (t/a Appledore Clinical Services) v Barclays Bank plc (2018) QBD (Comm) (Judge Waksman QC) 09/02/2018 which is a timely reminder from another jurisdiction that the scope of the declaratory relief sought must be precise and clear. There did not however have to be an immediate dispute between the parties, applying Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 387, as case in which I was involved. 
Congratulations to ET Judge Auerbach who has been appointed to the Circuit Bench and to Bronwyn McKenna of UNISON who is becoming a First Tier Tribunal Judge.

A reminder that in April 2018, the National Living Wage for workers over the age of 25 will rise from £7.50 to £7.83. The National Minimum Wage for workers between the ages of 21 and 24 will increase from £7.05 to £7.38, for workers between 18 and 20 it will increase from £5.60 to £5.90, for workers between 16 and 17 years old it will increase from £4.05 to £4.20 and, for apprentices under the age of 19, it will increase from £3.50 to £3.70. Failure to pay the minimum wage may result in employers facing penalties of £20,000 per worker in addition to a potential ban on the employer’s directors from acting in such a capacity for up to 15 years.

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