Lewis Silkin updates

Deliveroo defends union recognition application by demonstrating riders are genuinely self-employed
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • December 13 2017

The Central Arbitration Committee (CAC) has rejected an application from the Independent Workers' Union of Great Britain for collective bargaining rights in respect of Deliveroo riders. In the first high-profile worker-status decision to find in favour of a company in recent times, the CAC held that Deliveroo's riders have a genuine right to use a substitute to perform deliveries before and after they have accepted a job, which riders take advantage of in practice.

Uber's worker status appeal rejected
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • December 06 2017

The Employment Appeal Tribunal recently upheld the Employment Tribunal decision that drivers engaged by Uber are workers rather than independent contractors. The decision has been eagerly awaited by human resource and employment practitioners seeking guidance on how to apply the test for worker status properly in the context of gig economy businesses. However, the judgment is highly fact-specific and other cases concerning gig economy businesses may not be decided in the same way.

New Acas guidance on mental health in workplace
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • November 22 2017

The Advisory, Conciliation and Arbitration Service has published a guide to promoting positive mental health in the workplace. The guide highlights the benefits for employers in proactively addressing this issue and sets out a step-by-step process to help them to achieve the key objectives of tackling the causes of work-related mental ill health, creating a culture where employees can talk about their mental health and supporting employees who are experiencing mental ill health.

Progress on parental bereavement bill
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • November 15 2017

The proposed Parental Bereavement (Pay and Leave) Bill – which aims to provide a statutory right to paid leave for employed parents who suffer the loss of a child – was recently introduced in Parliament. Previous attempts to introduce paid leave in these circumstances have been unsuccessful. However, the new bill has the government's support and is likely to become law.

Employment tribunal fees – refunds begin
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • November 08 2017

The government has launched the first stage of its scheme for refunding employment tribunal fees following the Supreme Court's decision that the fees system was unlawful. The first stage will involve 1,000 people being contacted to apply for a refund, after which the full scheme will be rolled out. Employers should register their interest now and locate their Employment Tribunal order and proof of payment, in preparation for making an application when the full scheme opens.

Gender pay gap reporting – the story so far
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • October 18 2017

Only 80 of the estimated 7,000 employers with 250-plus employees have uploaded their gender pay gap reports to the government's website. The snapshot from these reports reveals that the mean, mean pay gap and the mean, median pay gap are lower than expected. Further, the data shows a steady progression from a preponderance of female employees in the lowest paid quartiles to a preponderance of male employees in the highest paid quartiles. However, these statistics may not be reliable.

Taxation of termination payments – updated legislation published
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • October 11 2017

The government recently published the Finance Bills 2017 and 2018, which contain the latest proposals for changes to the tax and national insurance treatment of termination payments. The updated legislation, which is likely to be enacted, simplifies the rules regarding non-contractual payments in lieu of notice. However, the circumstances in which foreign service exemption or relief will be abolished have been widened.

Retail workers comparable to distribution centre workers for equal pay claim
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • September 27 2017

The Employment Appeal Tribunal (EAT) recently ruled that individuals working in Asda retail stores can compare themselves with hypothetical distribution workers, allowing the United Kingdom's largest private sector group's equal pay claim to proceed. The EAT rejected Asda's argument that the Equality Act 2010 had altered the law when replacing the relevant section of the Equal Pay Act 1970 and upheld the use of hypothetical comparators where no actual comparators work at the claimant's establishment.

Executive pay ratio reporting – sound familiar?
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • September 20 2017

The government recently announced that it will take forward a number of proposals for corporate governance reform relating to employment, including proposals on executive pay ratio reporting, which echo the new gender pay gap reporting requirements. However, it remains to be seen whether the government will take on board some of the lessons of gender pay gap reporting or whether this will become another public policy initiative which produces misleading results and does little to tackle the underlying problem.

Latest decision on holiday pay – regular voluntary overtime payments to be included
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • September 06 2017

The Employment Appeal Tribunal has clarified that regular voluntary overtime payments form part of normal remuneration and should be included in the calculation of holiday pay for the purposes of the four weeks' minimum annual leave entitlement required by EU law. Employers should now review their overtime arrangements and approach to calculating holiday pay to ensure compliance with this decision.

Thorny issues arising from abolition of employment tribunal fees
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • August 30 2017

The Supreme Court recently ruled that employment tribunal fees are unlawful. The case has significant constitutional and political implications, but also raises a number of thorny practical issues regarding the volume of future claims, administrative processes, refunds of historic fees and out of time claims.

Right to paid parental bereavement leave is coming
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • August 23 2017

The Parental Bereavement (Pay and Leave) Bill, introduced into Parliament in July 2017, would entitle employees who have lost a child to statutory paid leave to allow them time to grieve. Although this is a private member's bill, it is supported by the government and would fulfil a Conservative manifesto promise to ensure bereavement support for employees – so there is a good chance that it will become law.

Employment tribunal fees ruled unlawful by Supreme Court
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • August 16 2017

The Supreme Court has unanimously ruled that the legislation requiring fees to be paid for bringing employment tribunal claims is unlawful and should be quashed. In one of the most remarkable employment law judgments of recent times, the court held that employment tribunal fees interfere unjustifiably with the right to access to justice and discriminate unlawfully against women.

Supreme Court upholds same-sex partner's right to equal pension
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • August 09 2017

The Supreme Court recently ruled that an exemption in the Equality Act 2010 allowing employers to exclude civil partners from pension benefits accrued before the Civil Partnership Act 2004 came into force is incompatible with EU law and should be disapplied. The case revolved around the retrospective application of the EU Equal Treatment Framework Directive, which prohibits discrimination in employment on various grounds, including sexual orientation.

The future of employment law: Taylor-ed to fit?
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • July 26 2017

The Review of Employment Practices in the Modern Economy – commissioned by the prime minister and chaired by Matthew Taylor – has produced its long awaited report, which contains extensive analysis of the UK jobs market and how it is likely to evolve in an era of automation and robots. If carried forward to legislation, Taylor's recommendations will have profound implications for all employers; particularly those using contractors and zero-hours and agency workers.

ECJ advocate general opines on adequate facility provisions
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • July 19 2017

A recent Employment Appeal Tribunal decision concerning paid annual leave was referred to the European Court of Justice (ECJ). If followed by the ECJ, the advocate general opinion in King v The Sash Window Workshop Ltd will extend employers' liabilities in a new direction by requiring that they must provide an "adequate facility" for workers to exercise their right to paid leave.

The future world of work: regulating the work relationship
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • June 21 2017

The gig economy has drawn criticism from many quarters on the way in which some platforms operate and the rights of those working for them. In light of the increasing focus on employment status in the gig economy, the government recently launched an inquiry into the future world of work, which provides an opportunity to scrutinise and rethink how the United Kingdom regulates the relationship between 'work givers' and 'work performers'.

Supreme Court clarifies indirect discrimination test
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • May 03 2017

In two recent decisions, the Supreme Court gave a clear explanation of how the test for indirect discrimination works and decided that it is not necessary to explain why a provision, criterion or practice disadvantages a particular group in order to show indirect discrimination. This decision is not particularly helpful for employers as it makes it somewhat easier for individuals to make an indirect discrimination claim. However, the news is not all bad.

Supreme Court ends British Gas challenge to holiday pay ruling
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • April 12 2017

The Supreme Court recently refused permission for British Gas to appeal against an important ruling that the calculation of holiday pay should include results-based commission. However, an employment tribunal still needs to consider issues such as whether the commission scheme effectively compensated for the period of annual leave. Only then will employers have clarity about how to calculate holiday pay for those earning results-based commission.

The risk for employers in bypassing collective bargaining
Lewis Silkin
  • Employment & Benefits
  • United Kingdom
  • April 05 2017

Can an employer that has recognised a trade union for collective bargaining purposes still put an offer directly to its employees? This was addressed in a recent case in which an employer offered a pay deal directly to its employees; the Employment Tribunal found that it had bypassed the collective bargaining arrangement, resulting in a substantial financial penalty.

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