Welcome to the November edition of Up to Date. Included in this issue: ECJ ruling on holiday pay; EAT decides that Uber drivers are workers; the CAC decides that Deliveroo riders are not workers and more...

Holiday pay: ECJ ruling on holiday pay

The ECJ has ruled that workers who are denied the right to take paid annual leave are entitled to bring claims in respect of accrued but untaken leave.  There is no requirement on them to take the leave on an unpaid basis in order to bring a claim.  Further, the right to paid annual leave for such workers accrues and carries over without limitation.  This case has important implications for employers who have not yet adjusted holiday pay to include variable payments such as overtime and commission.  It is also of concern to employers who engage individuals on a self-employed basis but who could be deemed to be "workers" for employment law purposes (King v The Sash Window Workshop, ECJ).

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Employment status: EAT decides that Uber drivers are workers

Earlier this month, the Employment Appeal Tribunal (EAT) upheld a previous Employment Tribunal decision that, when the Uber app is switched on, Uber drivers are workers for the purposes of their claims under the Employment Rights Act 1996, Working Time Regulations 1998 and National Minimum Wage Act 1998 (Uber BV, Uber London Limited and Uber Britannia v Aslam & Ors, EAT).

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Employment status: the CAC decides that Deliveroo riders are not workers

In considering an application for statutory trade union recognition, the Central Arbitration Committee (CAC) had to consider whether delivery riders engaged by Deliveroo were workers.  If they were not, the application would fail.  The CAC concluded that the riders were not workers on the basis that there was a genuine, almost unfettered right of substitution.  This meant that there was no requirement to perform the work personally and the worker test had not been satisfied (Independent Workers' Union of Great Britain v RooFoods Limited t/a Deliveroo).

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Employment status: House of Commons Committees publish report and draft bill outlining a new framework for modern employment

On 20 November 2017, the House of Commons Work and Pensions and Business, Energy and Industrial Strategy Select Committees published a joint report entitled "A framework for modern employment".  The report develops some of the recommendations made in the Taylor Review on Modern Working Practices and annexes a draft bill covering the reforms that it proposes the Government take forward.

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Discrimination: where a decision-maker's decision is strongly influenced by someone acting with discriminatory motives, the decision may be viewed as a joint decision and may be discriminatory

In Commissioner of Police of the Metropolis v Denby the EAT upheld a Tribunal's decision that individuals who had heavily influenced the decisions of an official decision-maker should properly be regarded as joint-decision makers.  That being the case, the motivations of all the joint decision-makers could be taken into account to determine whether the decisions were tainted by discrimination.  In this case, the influencers were acting from discriminatory motives, meaning the decisions were discriminatory.

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Sex discrimination: an employer must conduct a specific risk assessment for a breastfeeding mother or risk a sex discrimination claim

The ECJ has ruled that conducting a general risk assessment of the health and safety risks to pregnant workers and new and breastfeeding mothers is not sufficient to comply with the Pregnant Workers Directive.  On top of this, the employer must conduct specific risk assessments for individual workers to identify any particular health and safety risks they may face.  These risks will change at different stages of pregnancy and motherhood and may be different for different women performing the same job.  A failure by an employer to conduct such a bespoke risk assessment may give rise to a direct sex discrimination claim (Ramos v Servicio Galego de Saude, ECJ). 

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New Acas guidance launched to help managers support staff suffering from stress

Stress at work is on the rise. In 2016-17 the Health and Safety Executive recorded 526,000 workers in the UK reporting work-related stress, depression or anxiety, amounting to 40% of work-related illnesses.  ACAS received 11,000 calls to their helpline during 2016 regarding stress at work, highlighting the importance for employers to be aware of and take steps to tackle work related stress and develop practices to assist those struggling with stress.  In response to this, ACAS has recently published guidance aimed at managers to assist them in supporting staff at work and to improve productivity within the business.

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Implied terms: the implied term of trust and confidence includes an obligation not to deliberately mislead.

In Rawlinson v Brightside Group Ltd, UKEAT 2017, the Employment Appeal Tribunal ('EAT') held that an employer had breached the implied term of trust and confidence when it gave a false reason for an employee's dismissal, with the effect that the employee was entitled to bring a claim for breach of contract for his notice pay.

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