Articles | Best of 2017

The FSP employment team pick their highlights of last year.

Ian Machray

Ian Machray

In 2017 Donald Trump did his best to monopolise the headlines but buried under the intense media coverage of global political developments, there have been a number of significant changes in the world of employment law which may have slipped under your radar. Although the government has prioritised Brexit negotiations, employment issues were never too far away from the agenda. An independent review of working practices (read more) that may signal future changes was commissioned and tribunal fees were deemed unlawful.

In case you have missed the major developments or if you are in need of a recap, here is our pick of five of 2017’s most eye-catching employment issues and cases on the hot-topics which will no doubt continue to bring interesting developments in 2018.

1) A spanner in the works – plumber is a ‘worker’

In February (read more), we reported on the ‘Pimlico Plumbers’ Court of Appeal decision that a plumber who had carried out work as a self-employed contractor was entitled to claim worker status and the various employment protection rights workers receive. The fact that the plumber could swap work with other plumbers did not prevent a finding that he had to carry out work personally – crucial to worker status.

This decision is just one of the high-profile cases concerning whether those classified as self-employed contractors have worker status. It is also worth noting that this result has been appealed and will be heard at the Supreme Court towards the end of February. The issue will no doubt continue to dominate in 2018 with the Uber case due to be heard in the Court of Appeal.

2) The BBC’s gender pay gap revealed

In July (read more), we reported on the BBC’s publication of its stars’ salaries which revealed that two-thirds of its highest-paid stars are men. Female presenters responded by calling on the BBC to act immediately to deal with the disparity and women at various levels have made formal complaints about pay.

The pay disclosures were due to a new BBC charter however it comes at a time when gender pay is under closer scrutiny due to the new gender pay gap reporting regulations which came into effect on 6 April 2017. Although the first reports for large private and voluntary sector employers will not be due until 4 April 2018, more than 500 organisations have already started to publish their gender pay gaps, revealing discrepancies in pay and bonuses.

The issue for the BBC has intensified this month with BBC's China editor Carrie Gracie resigning from her post, citing pay inequality at the organisation. It is believed that legal action may start soon. Watch this space…

3) Tribunal fees unlawful

In July (read more), we also reported on the significant Supreme Court decision that the employment tribunal fee system introduced four years ago is unlawful on multiple grounds and must cease with immediate effect.

If the government wishes to continue to charge fees for tribunal cases, there will need to be substantial changes as to how the regime is operated. The government will have to show it has taken into account access to justice and the fees are proportionate to the aims of incentivising settlement and discouraging weak or vexatious claims.

Between July and September 2017, there was an increase of 64% in the number of single Employment Tribunal claims lodged (as well as a 23% increase in Early Conciliation notification) and as a new fee regime does not appear to be a priority for the government at the moment we are in no doubt that the increase in tribunal litigation will continue in 2018.

4) Don’t snoop on staff correspondence

In September (read more), we reported on a successful appeal in the European Courts which found that the Romanian courts had not adequately protected an employee’s rights to respect for his private life and correspondence when it monitored an employee’s private messenger account at work.

The Grand Chamber found that the national court had failed to determine whether the employee had received prior notice from his employer that his messages may be monitored. The employer also failed to inform the employee of the extent of the monitoring or the degree of intrusion into his private life.

This decision was followed in a December 2017 case where a university lecturer’s rights were deemed to have been infringed by the installation of surveillance cameras in student auditoriums. We expect to see more cases on privacy in the workplace in 2018.

5) Can workers carry over unlimited holidays?

In December (read more), we reported on the case of King v Sash Window Workshop where the European Court of Justice (ECJ) held that a worker who does not take holiday because he understands it will not be paid are entitled to carry over all such holiday accrued throughout their engagement and receive a payment in lieu of this holiday on termination.

The case establishes that workers could potentially recover decades of unpaid holiday if they have been deterred from taking holiday by their employer. Given the recent trend towards individuals in the ‘gig economy’ establishing worker status, the decision places businesses which rely heavily on engaging individuals as independent contractors at particular risk of claims.

The case also raises questions over whether domestic legislation is compatible with EU law. The case will be returning to the Court of Appeal this year where hopefully we will gain more clarity on the practical impact of the ECJ decision.