The CMA’s Annual Report and digital markets - a time of change
It’s 2017; you’ve now returned all of your unwanted presents, your Christmas tree is lying abandoned outside and you’ve decided on a date for your new diet and exercise regime to begin. So is there anything to look forward to in 2017: a year of Trump, various European elections and the impending threat of Brexit?
Well for a start, a whole load of discrimination. Nothing to do with the new American President; I’m actually talking about a whole host of imminent judgments on religious belief, disability and age related discrimination. And if that isn’t enough to get you out of bed on a cold, dark January morning, the fate of both the gig economy and tribunal fees is also on the cards to be decided, the public interest test is being put to the test yet again, and we have much to learn and digest on the subject of Gender Pay Gap reporting (more on this in another blog shortly). In short, it is going to be an exciting year.
We are expecting not one but two ECJ judgments on the banning of Muslim headscarves (Achbita v G4S Secure Solutions NV & Bougnaoui v Micropole Univers). In the battle of the Advocate Generals, we wait with baited breath to see who will triumph. AG Kokott took to the ring first back in May 2016, opining that banning visible signs of political, philosophical or religious beliefs (within a Belgian employee code of conduct) did not amount to direct discrimination when used to prevent a Muslim employee from wearing her headscarf. She noted in particular that employees may be expected to moderate the exercise of their religion in the workplace, and that there was much to support a conclusion that a ban of this type was proportionate. However, fast forward to July and AG Sharpston took a different line. In her opinion, an employee’s dismissal for wearing a headscarf at work, having been told not to on the back of a client request, was less favourable treatment on the grounds of her religion, and thus direct discrimination. In sharp contrast to just a few months prior, she felt it would be difficult to envisage any circumstance, short of a serious health and safety concern, which would justify a blanket ban on religious apparel. The public cannot vote on this one, but the result is no less eagerly anticipated.
In the meantime, HR professionals may concern themselves with three further conundrums. This month, the Court of Appeal is scheduled to hear an appeal on Harrod v Chief Constable of West Midlands Police and others, on whether the compulsory retirement of police officers can be objectively justified. Also this month, the Court of Appeal looks at the EAT’s decision in Donelian v Liberata UK Ltd that an employer who took reasonable steps, but not every possible step, to ascertain whether or not an employee was disabled, did enough to avoid having constructive knowledge thereof. And finally, following Court of Appeal clarification in Home Office (UK Border Agency) v Essop (joined with Naeem v Ministry of Justice) on the requirement in indirect discrimination cases both to show why the PCP in question disadvantages the group sharing the protected characteristic, and to show personal disadvantage caused by its application, both cases went to the Supreme Court in November of last year, and judgment is awaited.
In other news, we are hoping 2017 will bring with it the results of the three government and independent reviews into the changing nature of “the workplace”, and in particular the “gig economy”. BEIS is currently reviewing generally the implications of this evolving area on workers’ rights and responsibilities and on employer freedoms and obligations, and the review is expected to last until July. Meanwhile, The Office of Tax Simplification is, unsurprisingly, looking at this from a tax perspective; and the Work and Pensions Committee is looking at the impact on the UK welfare system of the needs of an increasing number of self-employed and gig economy workers. In addition, an appeal on Pimlico Plumbers Ltd and another v Smith on the subject of employment status is due to be heard this month.
Although even pre-school children are now completely familiar with the meaning of “Brexit” (it means Brexit apparently), we are still generally in a bit of a muddle as to the meaning of “public interest”. Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed was the first appeal decision to shed any light on the requirement that, for the purpose of a whistleblowing claim, a person making a protected disclosure must reasonably believe that that disclosure is in the public interest. In that case, “the public” was held not to mean the public as a whole, and it was decided that a group of 100 managers was a sufficiently large section of the public for this purpose. However, fast forward to August 2015, and the EAT in Mr D Underwood v Wincanton Plc overturned a tribunal decision to strike out a dispute between an employer and four employees in relation to their terms and conditions of employment. The tribunal judge had struck out the claim on the basis that the Claimant could not have held a reasonable belief that the matter was in the public interest, as such a dispute does not affect the public. The EAT however, felt that such a dispute between employer and employee is capable of being “in the public interest”. Chestertons v Nurmohamed has been appealed, and the Court of Appeal is due to hear the appeal in June.
Finally, you may remember that in February 2016, UNISON were granted permission to appeal their dismissed judicial review applications on tribunal fees to the Supreme Court, and the hearing was scheduled for early December 2016. February was of course also the month in which a confident Mr Cameron announced he would be giving the Great British public a referendum on whether or not to leave the European Union. Consequently, ten months later the long awaited appeal on tribunal fees was bumped from its hearing date in favour of the Brexit appeal, and will instead be heard at the end of March 2017. In the meantime, and following a dressing down from the House of Commons Justice Committee, Sir Oliver Heald, Justice Minister, has advised that although the Ministry of Justice’s post-implementation review of employment tribunal fees (announced way back in June 2015) is still not finished, it is to be published “as soon as possible in the new year”. He promises that once it is finally published, it will address the recommendations made by the Justice Committee in their more timely review.
Oh, and of course there is also the small matter of Brexit…
If you have any questions about the issues raised in this blog, please contact a member of our employment team.
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