In this June edition we look at Labour’s proposals for employment law reform, explore developments in AI, and provide an update on the Sexism in the City inquiry.
Case law updates
Employment tribunals – list of issues: Ahead of a hearing, it is usual for the parties to agree a list of issues for determination by an employment tribunal (ET). The Employment Appeal Tribunal (EAT) has been considering the status of a list of issues in circumstances where an unrepresented claimant’s claim for discriminatory constructive dismissal had been included in their claim form but did not feature in the list of issues (which had been largely prepared by the respondent). In concluding that the ET should have considered the claimant’s claims, the EAT clarified that a list of issues was a useful case management tool but should not be elevated to the status of a pleading. It was relevant in this case that the claim was clearly pleaded, the relevant circumstances featured in the list of issues, and there was no suggestion that the claim had been withdrawn. Against another factual background, the ET may be entitled to rely more strictly on the list of issues, highlighting the importance of the parties taking time to ensure these cover everything. (Z v. Y)
Employment status – volunteers: The EAT has concluded that a coastal rescue volunteer was a worker in circumstances where there was a requirement for minimum levels of attendance for training and rescues, and where the volunteer had a right to remuneration (to cover costs of volunteering and the disruption caused to his personal life by the unsociable hours), even if it was never claimed. The EAT found, on the facts, that the arrangement gave rise to a provision of services and there was a requirement for personal service, and as a result the volunteer was a worker whilst doing work for which he was entitled to be remunerated. It remains unclear what his status was whilst carrying out activities which were not subject to remuneration. As with many status decisions, the specific facts and circumstances are highly relevant, but this case will be of interest to employers who work with volunteers, especially where there are minimum expectations on volunteering activities and some remuneration is given for the volunteers’ time. (Groom v. Maritime and Coastguard Agency)
Race discrimination – pay: The Court of Appeal has handed down its judgment in a group claim by outsourced contract workers claiming indirect race discrimination when they were paid less than the London Living Wage in contrast to the direct-hires of the end user client. They alleged that as contract workers they were treated less favourably in terms of pay and that this had a disparate impact on workers from a black or minority ethnic background who, they said, were more likely to work in outsourced jobs. Whereas the claims succeeded in the original ET, the Court of Appeal disagreed. The claims did not fall within the provisions of the Equality Act 2020, which allow contract workers to complain of discrimination by the end user client, because the complaint related to pay under their contract with their employer, the supplier of the services, and not their relationship with the end user client. In any event, the claimants failed to show that Black and ethnic minority workers were disproportionately affected. (Boohene and others v. Royal Parks Ltd)
Vicarious liability: A claimant brought a claim of disability against her former employer following her resignation, which resulted from various incidents, and named two individual colleagues as perpetrators of discriminatory conduct as further respondents to the claim. While the ET found the employer to have been vicariously liable for the acts of its employees, it dismissed the claims against the individuals themselves. However, on appeal the EAT disagreed – if liability attaches to the employer by virtue of its employees carrying out discriminatory acts in the course of their employment, the ET did not have any discretion to find that the individuals responsible for that conduct, as named respondents, are not liable. (Baldwin v. Cleves School and others)
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