Employment Law Update: Liverpool

About the conference

by Becky Evans, Unite

Conference Chair, James Harrison from IER, welcomed everyone to the conference and gave a detailed round up of the events and challenges faced by the Labour and Trade Union movement. Points James raised were the Taylor review and the potential attack on workers’ rights from the Brexit Withdrawal Bill. The possible attacks against the Working Time Directive and the possibility that Transatlantic Trade deals will have on workers’ rights. Unless these existing rights are written into primary legislation then they may be eroded. Positive moves against this in Scotland is a Private Members Bill being put forward by the STUC and SNP on Workers definition and Rights. In which, the proposals are for fixed agreed contractual hours but with flexibility by agreement with the trade unions, payments for cancelled shifts and more duty on large companies within supply chains to ensure workers’ rights. James also covered the impact of the Trade Union Bill and the challenges faced by trade unions in industrial disputes and the impact in the future of the potential review of facilities time and the impact of a possible capping of how much employers spend on facilities for stewards.

Download James’ introduction

Paul Scholey, Morrish Solicitors

Employment round-up & Cases from the workplace

Following on from James, Paul gave two detailed sessions of employment law cases that have shaped some decisions both in favour of workers and against, especially amongst the new ‘Gig Economy’ workers. Pimlico Plumbers, Uber being two of the highest profile. The most notable and sizeable victory, being the Unison victory against the fees for tribunals. He also detailed some the cases of discrimination, notably, the Essop & Naeem case in which the judge in the case at the Supreme Court, in which Lady Hale, stated that it is for employers to prove they took action or that they made decisions to change or not to change process in cases of discrimination. Paul also explained the details of extremely important cases in whistle- blowing cases and in particular, what is the definition of “in the public interest.” He went on to detail the new “Vento” guidance for claims for injury to feelings and the rates for compensation. Rounding up his first session, Paul explained the Kostal UK Ltd v Dunkley and the importance of the case for collective bargaining. His thoughts for the months ahead were there may be a re-introduction of tribunal fees but at a lower rate, more employment judges to deal with the increase of tribunals after the Unison victory and the impact of Brexit on UK law, ECJ decisions, equality and TUPE.

In his second session, Paul covered the growing concerns of cases involving dismissals for social media and the importance of understanding that everything on your social media is up for scrutiny by employers current and future. One very important case disclosed was Barbulescu v Romania and the importance of the direction taken in this case as it went to the Grand Chamber which turned over the ECJ decisions. The points of this case are important as employers are increasingly monitoring workers on a daily basis. This case set grounding principles of what is acceptable monitoring at work and for what legitimate purposes.

Download Paul’s year in employment law presentation

Download Paul’s cases from the workplace presentation

Hannah Boynes, Morrish Solicitors

Liability for acts of employees & Disability cases

Hannah went into in-depth detail on the topic of ‘Vicarious liability.’ Some of the cases described, it was hard to establish that there was vicarious liability, especially in acts occurring outside the workplace. However, even in one case, Lord Justice Clark stated, “Vicarious liability is on the move.”

Hannah detailed cases such as Unite the Union v Sally Nailard and the nature of the ‘agent’ of the union and their actions acting as an agent within the relationship had established that Unite were vicariously liable for the actions of their branch officials. In many of the cases described, it was clear that just because the employer disapproved of the actions of the employee, worker or agent, did not make them not vicariously liable. Two important questions to be asked when trying to establish vicarious liability would be; 1) What is the function or field of activities? 2) Whether there is sufficient connection in his/her role or functions?

Hannah summed up the session by her thoughts that judges feel that employers and large organisations have bigger pockets and should pay for the actions of employees they instruct and are more able to compensate injured individuals.

Hannah’s second session on discrimination cases, detailed the First Bus v Paulley case. In this case, six judges had varying points on the case and the debate on their opinions was explained. The theme throughout the Lords during the debate in this case was, “we cannot enforce decency in society.” Hannah also described the case of Galo v Bombardier UK where the matter of neither the representatives nor the tribunal services provided the facility for a fair hearings for the Claimant with Asperger’s Syndrome as he was consider for any reasonable adjustments. The outcome of this case produced the Equal treatment bench book.

Download Hannah’s Liability presentation

Download Hannah’s Disability presentation

Matthew Pull, Thompsons Solicitors

Gender Pay Reporting – Is it Working?

Matthew started with some valid points on the moral and ethical reasons why employers should pay man and women equally but also it has an economic benefit of adding 1.5 billion to GDP. Out of the 9,500 employers that would be due to report, as of today (18/01/2018) only 619 employers had actually uploaded their reports. Matthews view on this was that as the requirement has zero sanctions or repercussions on employers that do not report, that businesses are waiting to analyse their sector first before disclosing their own figures. This is a poor attitude and until there are sanctions put on employers who fail to disclose or report, then he could not see the situation improving. However, trade unions should still be applying pressure within workplaces where there is recognition and or collective bargaining to ensure their employers conduct and report their findings.

Even those companies that have reported, the findings are dubious. Some of the calculations do not add up and there is no requirement to explain any gaps found, address the gap or even ACAS guidance demonstrating how to address any issues in their audits.

Summing up Matthew listed ways in which the problem could be addressed through rights under TULRCA for the rights to information for collective bargaining, the government to award ECHR more rights at an earlier stage and the power to fine, as well as employers and trade unions to develop joint strategies and for more advancements to be made through education and career options forums.

Download Matthew’s presentation

Prof. Keith Ewing, IER

The Future of Employment Rights

Keith described the issues on the horizon in the changing relationships occurring as a 10% growth in precarious forms of work and growing. This no doubt, will have an impact on terms and conditions, the impact of Brexit, the problem of corporate failings as in the recent cases of Carillion, Monarch, BHS and East Coast mainline. All of these factors will all depend on political outcomes and factors. These precarious forms of work mean a large number of workers are excluded from employment law protection, breeds insecurity in work, coupled with the decline in the percentage of workers coverage by collective bargaining and trade union membership, does not bode well for the future unless the labour movement makes significant changes both politically and industrially

He also spoke about the Taylor review on how it focused on employment status and the 3 tier structure but the review was not clear on providing clarity on employment status, so legislation is desperately needed to make the definition clearer but also afford workers protection. A Private Members Bill is currently being heard backed by the STUC and the SNP which if enacted would remove the three tier tor two tier statuses and define someone as either a worker or employee. There were other recommendations such as contractual hours and agreed flexibility hours with trade unions consultation. This is a step to discourage the growing use and abuse of the zero hour contracts employers seemed to be adopting heavily across many sectors and industries. “If you provide your labour then you should be protected by labour law.”

There is already growing speculation amongst the Tory right that they will get rid of the Working Time Directive and Equality Laws but also reverse rulings made by the ECJ, for example on holiday pay and TUPE, a much hated regulation by the right. Due to the pressure applied on governments by big business, the impact of this American model will only undermine collective bargaining and workers’ rights further. Only 6% of workers in the US who work in the private sector are covered by a collective agreement. Keith quoted a blog from SEIU, a large aggressive union in the US, “This system is a failure, we must do it differently. Collective bargaining sector by sector and the benefits of centralised bargaining benefits everyone, improve workers incomes, address the imbalance of inequality, increases trade union membership and removes any discretion the employers have to set the rate for the job. The best servant of equal pay is collective bargaining.”

Keith also moved onto the Manifesto for Labour law and how with these proposals implemented there could only be a raise in coverage of collective bargaining, and a raise in benefits and terms and conditions. He also described how the lack of trade union or workers representatives on corporate boards needs addressing, especially so after recent corporate failures by both Carillion and the Government to ensure proper corporate governance in public sector contracts. Companies have far too much control of the labour markets but also pensions taken from workers who then have no say in how these pensions are invested. He closed his session with the point that there needs not only to be lessons learnt from history but employment law changes will not necessary bring about change but simply help the change. More ‘political will’ is needed, more worker voice at the corporate decision making level, and to bring about these changes corporations need to operate in an ethical and responsible manner and good employment rights will follow.

Speakers

Chaired by James Harrison, IER
Introduction
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Paul Scholey, Morrish Solicitors
The year in employment law
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Hannah Boynes, Morrish Solicitors
Liability for acts of Employees
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Paul Scholey, Morrish Solicitors
Cases from the workplace
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Hannah Boynes, Morrish Solicitors
Disability cases 2017
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Matthew Pull, Thompsons Solicitors
Gender pay reporting: is it working?
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Prof. Keith Ewing, IER
The future of employment rights

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