Frontline UK Employment Law Update Edition 5 2019

By Sam Rayner, Ian Hunter, Alison Dixon, Elizabeth Lang, Tom Mintern

05-2019

Welcome to the latest edition of Frontline UK.

This month, Associate Tom Mintern details planned changes to the IR35 tax regime which, from next April, will make many private sector businesses responsible for assessing the employment status of individuals engaged through certain intermediaries, including personal service companies. Awareness of these incoming changes and compliance with them is of paramount importance to many companies operating in the UK.

Our case updates discuss an important ECJ decision which confirms that employers must measure the actual daily working time of individual workers; a High Court decision on vicarious liability which tempers the more recent expansive approach to this doctrine; an EAT decision which reiterates the importance of a carefully managed appeal process to lawful dismissals; and a landmark Court of Appeal decision which highlights the difficulty of assessing the territorial scope of whistleblowing detriment claims for workers outside of Great Britain.

Finally, our legal updates cover the latest developments in the UK's largest equal pay claim as well as the Home Office's recent announcement that it plans to abolish passenger landing cards.

Off-Payroll Working: Preparing for the proposed changes to IR35 before 2020

As part of the government's crackdown on 'disguised employment', the IR35 ‘off-payroll’ rules that apply to the public sector will be extended to the private sector. From 6 April 2020, private sector businesses will become responsible for assessing the employment status of the off-payroll workers they engage. These changes are intended to increase compliance with the IR35 ‘off-payroll’ rules that have been in place since 2000 and will directly affect a large number of businesses and contractors.

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Case summary

Employers must measure daily working time of individual workers

Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE (ECJ)

The Court of Justice of the European Union ("CJEU") has confirmed that the EU's Working Time Directive ("WTD") requires Member States to oblige employers to implement systems which measure the actual number of hours worked by each of their workers per day. Without such systems, the CJEU considered that it would be excessively difficult, if not impossible, for workers to verify compliance with their WTD rights to a maximum cap on weekly hours and daily/weekly rest breaks.

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High Court takes narrow approach to vicarious liability following work party injury

Shelbourne v Cancer Research UK (High Court)

The High Court has held that an employer was not vicariously liable for actions of a visiting scientist (who was not one of its employees), who had dropped an employee whilst dancing at a work Christmas party and caused her serious injury. The Court considered that the wrongdoer's "field of activities" in the context of the employer, namely his research work, was insufficiently connected with the incident so as to give rise to vicarious liability under common law principles.

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Disability first raised at appeal hearing led to discriminatory dismissal

Baldeh v Churches Housing Association of Dudley and District Ltd (Employment Appeal Tribunal)

The EAT has confirmed that where an employer dismissed an employee on the grounds of capability before becoming aware of her disability during the hearing of her unsuccessful appeal against that dismissal, their decision to terminate could still amount to unlawful discrimination under the Equality Act 2010 ("EqA").

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EAT decision on territorial scope of whistleblowing co-worker claims overturned by Court of Appeal

Bamieh v Foreign and Commonwealth Office (Court of Appeal)

The Court of Appeal has held that the territorial jurisdiction of the Employment Rights Act 1996 ("ERA") does not allow an employee who was seconded abroad to bring personal claims of unlawful whistleblowing detriment against two co-workers in respect of events which occurred whilst they were all working outside Great Britain on an international secondment. The fact that the relevant individuals had never worked together in the UK and had been assigned to the relevant "international mission" separately meant the factual "connection" with Great Britain, which is necessary to engage the ERA's territorial jurisdiction, was not present.

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Legal Updates

UK's largest equal pay claim proceeding at pace
Following the Court of Appeal's dismissal of Asda's second appeal earlier this year (in Asda Stores Ltd v Brierley and others [2019] EWCA Civ 44), Manchester Crown Court has begun its substantive hearing of group equal pay litigation brought by thousands of supermarket workers.
As a reminder, the Court of Appeal recently found that the claimant group, most of whom are female retail workers, are entitled to compare themselves with other mostly male Asda colleagues, working in separate distribution depots for equal pay purposes. In short, this landmark ruling meant that Asda's predominantly female retail workforce could now proceed with their substantive claim against their employer.

The result is that almost 30,000 retail shop floor workers (through the website www.equalpaynow.co.uk) are now being represented in equal pay cases against Asda, Tesco, Sainsbury's, Morrisons and the Co-Op. The hearing will run from 13th to 24th May and from 3rd to 7th June. If found liable, the big five supermarkets could be on the hook for back-payments totaling more than £8 billion over the previous six years. This is definitely one to watch closely; the undervaluing of work traditionally viewed as “female” continues to cast a long shadow throughout UK businesses and we could see further group claims across other parts of the retail sector and indeed other sectors.

Home Office abolishes passenger landing cards and expands the use of ePassport gates to seven more countries
The UK Government has introduced the following two measures, both effective as of 20 May 2019, in an effort to further digitalise border control and to make the process of entering the UK smoother:

  •  all non-EEA travellers are no longer required to fill in landing cards upon arrival in the UK; and
  • visitors from Australia, Canada, Japan, New Zealand, Singapore and the United States will be able to use ePassport gate at ports across the UK.

Non-EEA visitors allowed to use ePassport gates should still have their passports stamped by an Immigration Officer if they are coming to the UK for a specific purpose.

Listed below are instances in which you should have your passports stamped:

  • for short term study of up to 6 months;
  • with a Tier 5 Creative and Sporting Certificate of Sponsorship for short-term assignments (up to 3 months);
  • to carry out Permitted Paid Engagements; and
  • as the family member of an EEA national seeking to join them permanently in the UK if you’re a national of Australia, Canada, Japan, New Zealand, Singapore, South Korea or the USA.