Frontline UK Employment Law Update Edition 9 2019

Our feature article, written by Associate Furat Ashraf, provides some tips for employers seeking to manage social and political activism amongst their workforce, in the context of the recent mass protests which have taken place around the world.

As the clock continues to run down on Brexit this month, we also have a dedicated immigration article written by Yuichi Sekine covering what employers need to know in the event of a no-deal Brexit.

Our case updates cover a Tribunal decision stating that vegetarianism is not a protected characteristic for the purposes of discrimination claims; an EAT confirmation on EWCs and transnational restructuring; an EAT judgment on the preconditions for a successful whistleblowing claim; and an EAT ruling that provision of services through a limited company does not preclude benefit of employment rights.

Finally, our legal updates cover updated ICO guidance on deadlines for responding to DSARs and details of a radical programme of employment law reform proposed by the Labour party.

The woke workforce – dealing with employee activists

The last few months have seen a wave of mass protests taking place across the world. Whether it's the ongoing civilian protests in Hong Kong, the "gilets jaunes" (or yellow vest) movement in France or the Kashmir protest outside the UN headquarters in New York, September has seen people take to the streets like never before.

This month we take a look at the legal issues and best practice for employers faced with an increasingly politically active workforce.

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Implications of a No-Deal Brexit - What Employers Should Know

Although the prospects of the UK exiting the EU without a deal on 31 October 2019 remain unclear due to the passage of a law aimed at blocking a no-deal exit, UK employers should remain cautious and be ready for changes to immigration regulations in this turbulent time.

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Case Summary

Vegetarianism not a protected characteristic, but veganism might be

Conisbee v Crossley Farms Limited and others (Employment Tribunal)

An Employment Tribunal has concluded that vegetarianism is not a "philosophical belief" for the purposes of the Equality Act 2010 ("EqA") and should therefore not qualify as a protected characteristic for the purposes of founding discrimination claims. The Tribunal did suggest, however, that its conclusion may be different in the case of veganism, which was in its view premised upon a clear "cogency and cohesion" in the vegan belief.

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EWC opinions cannot delay transnational restructuring

Hinrichs & Others v Oracle Corporation UK Ltd (EAT)

In its first substantive judgment on the operation of European Works Councils ("EWC"), the EAT has confirmed that transnational businesses which have set up an EWC are able to proceed with large-scale projects prior to receiving and considering a formal EWC opinion. This does not absolve employers from their obligations to inform and consult, as well as to provide a reasoned response to any EWC opinion once given, but confirms that plans need not be delayed pending receipt.

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Employee belief in public interest crucial to whistleblowing claims

Okwu v Rise Community Action (EAT)

The EAT has reiterated that when assessing whether an individual has made a protected disclosure for the purposes of whistleblower protection, the focus should be on whether that individual had disclosed information which, in their reasonable belief, was communicated in the public interest. The surrounding circumstances (e.g. dismissal or disciplinary proceedings) and accuracy of the disclosure are not determinative.

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Provision of services through limited company does not preclude benefit of employment rights

Community Based Care Health Ltd v Narayan (EAT)

The EAT has ruled that a GP providing out-of-hours medical services was a worker and entitled to benefit from relevant statutory employment protections, such as the right to paid holiday and protection against discrimination, notwithstanding the fact that she was paid through a limited company.

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Legal Updates

The ICO has updated its guidance on applicable time limits for responding to requests from individuals seeking to exercise their data protection rights.
The new guidance clarifies that when calculating the initial one-month deadline for responding, data controllers should use the corresponding date in the following month referable to the date on which the request was received; not the day after receipt as was previously suggested.

You can find the updated guidance here.

Labour party proposes radical programme of employment law reform

The Labour Party has proposed a series of significant policy initiatives with the aim of strengthening individual and collective employment rights, if elected. The proposals would fundamentally reform the UK's employment framework and include commitments to:

• create a new Ministry for Employment Rights and a Workers' Protection Agency, to enforce employment protections and workplace standards;
• ensure all workers over the age of 16 are entitled to a national minimum wage of £10 per hour by 2020;
• merge employment status labels into one "worker" category for all but the genuinely self-employed;
• prohibit unpaid internships and zero-hours contracts;
• enhance enforcement powers in relation to gender pay auditing; and
• introduce sectoral collective bargaining on a variety of key terms and enhance the powers of trade unions.

For more information on the proposals, see here.