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Employment

The recent Employment Tribunal decision in the case of Jolly v Royal Berkshire NHS Foundation Trust has been in the news partly due to the fact that the Claimant (aged 86) is thought to be the oldest ever person to win an age discrimination case in the UK. The case is a stark reminder for employers of the dangers of allowing processes to be tainted by age related stereotyping.

Facts

Mrs Jolly worked for Berkshire NHS Trust as a medical secretary for a Consultant for many years (having commenced employment for the Trust’s predecessor when she was 61).

There appears to be continuing momentum behind moves to extend legal protections for women against pregnancy and maternity discrimination. This has been fuelled by a number of recent reports providing a basis for arguments that such discrimination, although clearly unlawful, is still prevalent in UK work places. In March 2016 research carried out by the Department for Business, Energy and Industrial Strategy (BEIS) and the Equality and Human Rights Commission (EHRC) suggested that 77% of women responding to their survey reported negative experiences at work related to their pregnancy or maternity.

With increasing numbers of people engaged in more unconventional and innovative working arrangements and with individuals becoming more aware of their rights and entitlements, the difficulty in determining “employment status” has become a hot topic that continues to burn bright. As mentioned in our previous Insight, the Government are now proposing to improve clarity on employment status to make it easier to determine who is an “employee” and who is “worker” and what rights they are entitled to, by aligning this with the test for employment status in relation to taxation.

Despite the apparently all-consuming BREXIT agenda the Government has just announced a package of measures designed to tackle sexual harassment at work. The topic has, no doubt, been pushed up the agenda because of the #metoo movement and surrounding media exposure throughout 2018. The proposals build on the previous recommendations of the Women and Equalities Committee (discussed in our previous Insight). Some involve consultation on specific amendments to the law, whilst others are simply announcements about future initiatives about which no details are yet known.

In July 2017, an independent but government sponsored review of modern working practices was published by Matthew Taylor, which put forward a number of recommendations on the issues arising out of the so-called “gig economy”. The government responded early in 2018 following substantial delay, launching a number of consultations on how to best implement some of the recommendations set out in the report. Following further delay, the government at the end of December confirmed that it proposes to make a number of changes to employment legislation to better protect individuals who work flexible and unpredictable patterns or who do not have guaranteed hours of work.

Although it is becoming less common, many employers still offer generous insurance benefits to employees that provide financial assistance should they become unable to carry out their role due to long-term sickness or disability. Such permanent health insurance policies allow the employee to recover the benefits payable provided that the employee meets the often strict criteria imposed by the insurer. Such schemes are clearly of great value to affected employees: as long as the employee remains unable to work (as defined in the terms of the individual policy), benefits may continue up to normal retirement age. This can potentially be many years. Most of these policies will require the employee to remain in employment in order to get the benefit of the PHI policy.

The protection of workers and employees against detriment and dismissal by an employer on the ground that they have “blown the whistle” or made a protected disclosure is well known. What is perhaps less recognised is that, as well as the fact that the employer can be held liable for unlawful actions of an individual’s co-workers in subjecting him or her to whistle-blowing related detriment, that an individual’s co-workers can also be personally liable for such detriment.

Yesterday, 10 October, the Supreme Court released its much-anticipated judgement in the Lee v Ashers Baking Company Ltd appeal, known widely in the press as “the gay cake case”. The case concerned Mr Lee, who had approached Ashers in Belfast, a family-run business whose owners were Christians that held the belief that the only form of marriage consistent with the teachings of the bible was between a man and a woman, to bake him a cake with the slogan “Support Gay Marriage”. Having initially taken his order Ashers subsequently declined to proceed with it and refunded Mr Lee his money and informed him that they could not bake the requested cake as it was inconsistent with their religious beliefs. Mr Lee brought claims for direct discrimination on the grounds of (i) sexual orientation and (ii) political opinion (as is possible in Northern Ireland). Although his claims were successful in the lower courts, the Supreme Court has reversed these decisions issuing a clear and well-reasoned judgement which gets to the heart of what amounts to direct discrimination.

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