Frontline: UK Employment Law Update July2017

In our Case Summary we look at a Court of Appeal decision on whistleblowing, which confirms that focus should be given to the reasonableness of an individual's belief when making a disclosure; an Employment Appeal Tribunal ruling which held that overseas employees who can demonstrate a strong connection with the UK will be entitled to collective consultation during redundancy; and a High Court case which provides guidance on establishing the validity of non-compete clauses.

Our Legal Update looks at the immediate abolition of the current tribunal fees regime, following the recent Supreme Court ruling which found them to be unlawful.

We also bring you the latest edition of our China Employment Law Update.

The government-commissioned review of modern working practices by Matthew Taylor, Chief Executive of the Royal Society of the Arts, has been published and it could have a significant impact on workers' rights if its recommendations are put into practice. The report calls for legislative change to help determine employment status more easily and recommends enhancing rights for individuals who are workers rather than employees, a shake-up of the rules on wages and new rights for zero hours workers and agency workers designed to reduce income instability.

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Whistleblower succeeds complaining about low commission

Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979

The Court of Appeal ("CA") has confirmed that a contextual approach is to be taken when determining whether a disclosure is made in the reasonable belief that it is in the public interest, so as to entitle the discloser to statutory whistleblower protection under the Employment Rights Act 1996 (“ERA”).

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Seahorse Maritime Limited v Nautilus International (UKEAT/0281/16)

The EAT has held that employees who can demonstrate a sufficiently strong connection with the UK will be entitled to collective consultation in a redundancy situation.

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Egon Zehnder Ltd v Mary Caroline Tillman [2017] EWHC 1278 (Ch)

The High Court has reviewed the principles for assessing whether a non-compete clause was necessary in order to protect legitimate business interests, and has set out guidance when establishing the validity of the non-compete clause.

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Employment Tribunal fees regime ruled unlawful

The UK's Supreme Court has ruled that the Employment Tribunal Fees regime, which has obliged individuals to pay 'issue' and 'hearing' fees in order to pursue employment claims since July 2013, is unlawful. The Court held that such requirements represented a disproportionate limitation on the right of access to justice under UK/EU law and were indirectly discriminatory against women and other protected groups, who are statistically more likely to bring the most costly discrimination claims.

As a result, and with immediate effect:

1. tribunal fees are no longer payable in respect of new and/or pending employment claims; and
2. the government must take steps to refund all fees paid by claimants since the regime's introduction.

It is yet unclear whether new, less onerous fee requirements will be introduced. However, a substantial increase in employment claims is likely in the short term.

It is also possible that claimants who have been deterred from bringing claims since the introduction of the fee regime will now seek to bring those claims – although initial limitation periods to bring such claims may have expired, claimants may argue that these time limits should be extended on the basis that this would be 'just or equitable' or that it was 'not reasonably practicable' (depending on the type of claim) to bring a claim in time. This could lead to a significant increase in litigation and unanticipated accrued liabilities for organisations.

Our more detailed analysis can be found here, and a copy of the Supreme Court's judgment can be read here.

Frontline China

Read the latest version of our monthly China Employment Law update here.