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Employment

In Okedina v Chikale, the Court of Appeal recently considered the question of whether a contract of employment could be said to be illegal due to the operation of immigration law. The decision is of particular significance where employers may seek to rely on the defence of illegality when facing claims by illegal migrant workers.

On 11 July the Government Equalities office issued a consultation document [https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace] setting out proposals and options for the reform of the law relating to sexual harassment in the workplace.  The background is, of course, wide spread concern and press interest in sexual harassment issues involving certain specific high profile cases and the wider #MeToo movement. It also follows a report by the Women and Equality Select Committee (WESC) which called on government and employers to assume a more active role in tackling the issue.

It is now common, in scenarios where employers and employees come into conflict about the impact of some incapacity which the employee may have, for the employee to claim that they suffer from a condition which qualifies as a disability under the Equality Act 2010 (the Act), and that their employer has taken or failed to take some action which results in disadvantage to them because of this disability. Employers may, however, counter with potential arguments about whether the individual was in fact disabled in law on the basis that unless the employee meets the legal definition of “disability” they can have no valid claim.

In Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall, the Court of Appeal considered whether it was unlawful discrimination to pay men on shared parental leave (SPL) less than mothers on paid maternity leave. Whilst the decision may be welcomed by employers who now have some clarity on the issue of SPL and pay, many may see the decision as reinforcing gender stereotypes which are not consistent with the modern world.

For employers, balancing the duty of care towards employees with the obligation not to discriminate against individuals on the grounds of disability can sometimes be a challenging task. Employers will want to make sure they are sufficiently safeguarding their employee’s wellbeing without making decisions which fall foul which of the Equality Act 2010.

There are few more vexed questions in employment law than the proper calculation of holiday pay under the Working Time Regulations. Unfortunately the answer is not getting much easier for employers. Regulation 16 provides that a workers is entitled to be paid as the rate of a “week’s pay” for each week of annual leave to which he or she is entitled under Regulation 13 (basic leave of 4 weeks) or Regulation 13A (additional leave of 1.6 weeks). For the definition of a “week’s pay” we are referred to the notoriously complex provisions of the Employment Rights Act (“ERA”) ss221-224. 

It has recently been reported that the Home Secretary, Sajit Javid, is considering reviewing the rules that allow employers to be alerted to the criminal history of prospective applicants. This a significant issue for both employers and employees with the former keen to properly scrutinize the character of prospective employees and the latter often concerned to avoid the disclosure of historical transgressions which disadvantage them in the labour market.

Vicarious liability is the principle of law which allows an employer to be held liable for the actions of its employees, even where there is no wrongdoing on the part of the employer itself. Generally speaking, employers have a degree of control over the actions of their employees, so it is thought to be justified that employers should be liable in such situations, provided there is a sufficiently close connection between the act of wrongdoing and the act(s) the employer actually instructed the employee to do.

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