Jasmine in Your Mind.

By Andrew Knorpel, Partner and Head of Employment

Whether or not the recent summer breeze has been blowing through the jasmine in your mind, various issues have been fluttering through the minds of employment law practitioners over the last few weeks and will continue to do so over the coming months.

Firstly, the Supreme Court gave its unanimous judgment on 26 July 2017 upholding Unison’s challenge that the tribunal fees regime introduced in July 2013 was unlawful.  The challenge was upheld on all counts.  Firstly, that the fees prevented access to justice (having been set at a level which not everyone could afford, particularly in relation to low-value claims) and could not be justified as a necessary intrusion on the right of access to the tribunals.  In addition, the restriction on access to the tribunals could not be justified as pursuing a legitimate aim and being proportionate to that aim (such as raising income and deterring weak claims), both generally and because a higher proportion of woman brought Type B claims (including discrimination) than brought Type A claims (such as unlawful deductions from wages).

The Government will now have to re-imburse all the fees which have been paid over the last four years which it has been reported may amount to as much as £32 million.  This will be a complicated exercise as some of these repayments will not be to the claimants who originally paid the fees, but to the respondents who had been ordered to compensate claimants for such fees following successful claims (provided that they did in fact comply with that order).  The other imminent effect of the judgment is that no further fees will be payable in respect of new claims or hearings until such time as the Government may introduce a new lawful fees regime.

The Taylor Review of Modern Working Practices published its findings on 11 July 2017 and made various recommendations to clarify the law relating to employment status.  Amongst other things, it calls for the key factors in determining employee and worker status to be set out in legislation, with workers not being required to provide personal service and a greater emphasis on “control” (not limited to day-to-day supervision).  The review hopes that these revised definitions will assist those “gig economy” workers who provide their services through non-traditional but increasingly ubiquitous methods such as apps and other digital platforms.

The review also suggested that the definition of self-employment for employment law and tax purposes should be the same.  This would means that a judgment that a person is employed for tax purposes could also be relied upon for employment law purposes. In the meantime, the Taylor Review recommended that individuals should be able to ask a tribunal to determine their employment status without having to pay a fee, with the burden on the employer to prove that the claimant is not entitled to whatever employment rights might be claimed.  It will be interesting to see whether this recommendation is taken account when the Government introduces any new fees regime.

While we wait for the Government’s response to the Taylor Review, Uber’s appeal against the tribunal judgment on the employment status of their drivers is due to be heard on 27 and 28 September 2017.  Further claims by individuals working as couriers and drivers for other organisations have also been lodged in the tribunals in which they challenge their employment status.

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