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2017 was a big year for employment law and HR issues. In July 2017, the Supreme Court held that tribunal fees are unlawful. Since then, the official employment tribunal statistics have shown a 64% increase in claims, and it is likely that this upwards trend will continue in 2018. Several important ET and EAT cases on the so-called gig economy were decided, and the Taylor review was published, making various recommendations to overhaul the law on employment status. Towards the end of 2017, the news was dominated by successive sexual harassment scandals, and many employers are taking the opportunity to overhaul their own policies in this regard. Finally, hanging over all of this is the ongoing uncertainty over Brexit. Although various compromises have now been reached, for example in relation to the settled status of EU nationals who will have been continuously resident in the UK for 5 years on the date of exit, 29 March 2019, politicians have been quick to caveat that “nothing is agreed until everything is agreed”.

Don’t worry – despite the festive season now being well and truly upon us, this is not another rehashed blog about the perils of the Christmas party! Instead, this week we look at a recent case which has received much publicity because it highlights to employers, who are already well aware that their data protection obligations are changing with the coming into force of European Union’s General Data Protection Regulation (GDPR) on 25 May 2018, that courts can and will hold them “vicariously liable” i.e. liable through the actions of another for unauthorised use of personal data by their employees.

On 29 November the European Court of Justice (“ECJ”) issued an important and  uncompromising decision in the case of King v The Sash Window Worship  Ltd  which will have significant consequences for business operating in the “Gig Economy” and potentially wider implications for employers generally in relation to payment for annual leave.

Allegations made against Harvey Weinstein and the subsequent #metoo campaign have highlighted the continued prevalence of the problem of sexual harassment in workforces throughout the world. Whilst not the first person to coin the phrase ‘me too’, actor Alyssa Milano said: “If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status, we might give people a sense of the magnitude of the problem.” Within days women – and some men – were posting the hashtag #metoo over social media to open up about the harassment they had faced and who finally felt empowered enough to speak out.

Although most recent news cycles have been dominated by the Brexit negotiations, it has also been an interesting month for anyone following developments in relation to the gig economy. Uber has lost its Employment Appeals Tribunal appeal in relation to worker status of its drivers, whereas in the Central Arbitration Committee, Deliveroo was successful in establishing that their riders were not workers. Most recently, a joint report has been published by the Work and Pensions Committee and the Business, Energy and Industrial Strategy Committee of the House of Commons, incorporating a draft Bill to deal with issues raised in the Taylor Review earlier this year.

Maternity Action, a charity working to end inequality and improving the health and well-being of pregnant women, has recently produced a report on the increased risk of redundancy during pregnancy, maternity leave and returning to work. Maternity Action highlights statistics from a report by the Equality and Human Rights Commission (EHRC) which Eric Gilligan discussed in his article back in May 2016.

It is well known that workers who make “protected disclosures” (i.e. “blow the whistle”) must not suffer any detrimental treatment from their employer because they have made such disclosure. If they are dismissed for doing so, this will be an automatically unfair dismissal. This is a technically complex area of law, and there are many pitfalls which employers can fall into in relation to how they respond to whistleblowing. The recent Court of Appeal decision of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632 is therefore a welcome one for employers, as it affirms the principle that the dismissal of an employee who has made a protected disclosure may  be fair if the dismissing manager is shown to be unaware of any protected disclosures.  The motivations of other employees who may seek to subject an employee to disadvantage because of their whistle-blowing  are not to be attributed to the Employer  provided that  any disciplinary or capability process is conducted in a fair way independently of colleagues with such unlawful intentions.

Compassionate leave is time taken off by an employee following a bereavement. Many employers have a policy in place for compassionate leave which states how long employees are entitled to take off and whether it will be paid or not. Even if there are no formal policies in place, in practice most employers will allow employees to take time off following a bereavement or to attend a funeral.

Chambers UK 2018

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