Employment Law is based on:-

Statutory Law – Written down within regulations or acts eg. National Minimum Wage Regulations 2015 and Equality Act 2010
Common Law – When a case is taken to Tribunal then the outcome is appealed at EAT or higher,
the outcome is deemed as common law, or case law

Therefore, when a case is considered, the Tribunal Judge will take into account the Statutory Laws PLUS any relevant cases which go into more detail or clarify the matter.

You may have noticed in the news recently that there have been a huge number of cases where the worker/employees have won. These ‘wins’ will now be used as further case law for further claims and are something that employers need to be aware of.

What is new…….

The Gig Economy
You have no doubt heard this in the news or on social media and basically it covers people who work on occasion under a self employed basis (but aren’t always what they seem). Recent outcomes have been:-

June 2018 – Gary Smith, an engineer who worked for Pimlico Plumbers – worker
May 2018 – Christopher Gascoigne, Addison Lee cycle courier – worker
November 2017 –Deliveroo cyclists – self-employed
November 2017 – James Farrar and Yaseen Aslam, Uber drivers – workers
March 2017 –Andrew Boxer, a cycle courier for Excel (now part of CitySprint) – worker
January 2017 –Maggie Dewhurst, a CitySprint cycle courier – worker
June 2018 – Miss Lane-Angell, Bank Worker, Hafal – self employed

It doesn’t matter what kind of contract/agreement you put these people on, it depends how their services are provided, for example – are they paid via PAYE, do they wear your uniform, use your tools/equipment, can they replace themselves with a suitable other person etc?
If unsure take legal advice to prevent huge fines!

Annual Leave Calculations
There has been a lot of changes with respect to how holidays are calculated and how far back workers can claim them if they haven’t been paid or have been paid incorrectly.

The most recent case King v The Sash Window Workshop Ltd held that a worker is entitled to be paid on termination for any periods of annual leave that have accrued during employment, where the worker has been discouraged from taking that leave because it would have been unpaid. It was not an effective remedy for the worker to have to take leave and then sue for holiday pay (as he was told that he was self employed and couldn’t afford to take holiday as it was unpaid). There was no limit on the amount of leave that could be carried over in this type of case because an employer that does not allow workers to take paid leave must bear the consequences.

Dress Code
There has been two recent cases which have brought dress code into the limelight:-

Bougnaoui v Micropole Univers C-188/15
The ECJ held that an employee’s dismissal for wearing an Islamic headscarf at work, in breach of a direct instruction following a customer’s objection to her wearing the headscarf, was directly discriminatory on grounds of religion or belief.

Nicola Thorpe v PWC, surprisingly went in the Employer’s favour meaning that employers can continue to insist that female employees wear heels, providing it is considered a job requirement and men are made to dress to an “equivalent level of smartness”

On 17 May 2018, the Government Equalities Office published guidance on dress codes and sex discrimination.

How do you avoid all these potential pitfalls?
If in doubt give Elcons Employment Law Consultants a call and let us clarify what your rights are or how to prevent becoming one of the claims leading to case law!

ELCONS can assist in making sure you are compliant with statutory requirements!
If you are an employer and need specialist advice for all your HR issues, then talk to us. We have many years of experience in your sector.
We are here 7 days a week, 24hrs a day, 365 days a year ensuring that we provide all our clients with up to date employment law advice when it’s needed.
Elcons employer helpline: 01422 822 842