We also look at a number of cases in this alert.
The Supreme Court's decision in the "Deliveroo case" (technically the Independent Workers Union of Great Britain v Central Arbitration Committee and anor) found that riders working for Deliveroo were not workers so not entitled to collective bargaining of their terms. The riders were not covered by the right to form and join a trade union under Article 11 of the European Convention on Human Rights (ECHR).
The EAT has allowed an appeal against a tribunal's decision that a redundancy dismissal was fair where there had been no meaningful workforce consultation at a time when the redundancy proposals were at a formative stage. In this case there were 16 employees affected so the threshold requirements for collective consultation had not been met. The decision is therefore significant.
Associative discrimination is a topic employment tribunals are increasingly grappling with. While associative discrimination law may be broadening in scope to include indirect discrimination claims (see our alert from last month on the Follows case), the latest case makes it clear that identifying an appropriate comparator for direct associative discrimination claims is hard for claimants, as our analysis of the EAT's decision in No. 8 Partnership v Simmons shows.
In terms of legislative developments, the government have published a draft statutory instrument setting out changes which will be made to the Equality Act 2010 as a result of the post Brexit legal reforms.
We've also had ACAS' draft code on handling requests for predictable working which helps understand more about how this new law will work. The government's Autumn Statement touched on employment issues in that it covered apprenticeships, pensions, occupational health, off-payroll working and also changes to national insurance and national minimum wage. We look at the key points.
On the immigration front, the government has recently announced significant changes to the Skilled Worker visa route – see our alert from last week.
1. Trade Union Rights / worker status: Deliveroo drivers not in an "employment relationship" so not entitled to collective bargaining under human rights legislation
Employment status in the gig economy is regularly under scrutiny. In this case, the Supreme Court found that riders working for Deliveroo were not workers so not entitled to collective bargaining of their terms. The riders were not covered by the right to form and join a trade union under Article 11 of the European Convention on Human Rights (ECHR).
2. Redundancy consultation: Lack of workforce consultation at formative stage of redundancy proposals, in a redundancy exercise involving 16 employees, made a dismissal unfair
In this significant decision, the EAT allowed an appeal against a tribunal's decision that a redundancy dismissal was fair where there had been no meaningful workforce consultation at a time when the redundancy proposals were at a formative stage. In this case there were 16 employees affected so the threshold requirements for collective consultation had not been met.
3. Heat of the moment resignations: Tribunals must consider whether an employee who resigns in the heat of the moment "really intends" to resign
In this case the EAT found that a tribunal made a mistake by not asking the core question ofwhether, viewed objectively, an employee ‘really intended’ to resign. Instead, the tribunal incorrectly asked itself whether there were ‘special circumstances’ that justified departure from the general rule that an employer is entitled to rely on words of resignation in accordance with their plain and natural meaning.
4. Direct associative disability discrimination:Tribunal mistakenly decided an employee had suffered direct associative disability discrimination
In this case, a tribunal created incorrect hypothetical comparators and failed to give the parties an opportunity to address these before giving its judgment.
5. Discrimination: Draft statutory instrument preserving discrimination protections derived from EU law published
The draft Equality Act 2010 (Amendment) Regulations 2023 are designed to reproduce in domestic law certain discrimination protections derived from EU law that would otherwise have fallen away under the Retained EU Law (Revocation and Reform) Act 2023.
6. Tribunal practice: Employment tribunal hearings will be recorded and transcribed from 20 November 2023
The Presidents of Employment Tribunals in England and Wales and in Scotland have issued a joint Practice Direction and Presidential Guidance on the recording of employment tribunal hearings. Recordings will be made by His Majesty's Court and Tribunal Service (HMCTS) of all employment tribunal hearings where the technical facility exists and where such recordings can be securely retained.
7. Strikes: Regulations setting out minimum service levels for rail, ambulance and border security staff during strike action to be laid before Parliament shortly
On 20 July 2023, the Strikes (Minimum Service Levels) Act 2023 (Strikes Act) received Royal Assent. Under the Act, the Secretary of State has the power to set minimum services levels (MSLs) for strikes in certain "relevant services" by way of regulations.
The government has now published draft regulations setting out MSLs for rail, ambulance and border security staff during strike action. They are expected to be in force by the end of 2023 and will apply to England only.
8. Right to request predictable working: ACAS produces its draft code on handling these requests
In our October alert, we looked at the Workers (Predictable Terms and Conditions) Act and reported that Acas would produce a draft Code of Practice providing guidance on making and handling requests in anticipation of the implementation of the Act in autumn 2024. Acas has now published its new statutory Code of Practice in draft and launched a consultation on the content.
9. Government's Autumn Statement
On 22 November 2023, the Chancellor of the Exchequer, Jeremy Hunt, delivered the Autumn Statement. We look at the key points for employers.
