Read on for our monthly digest for employers on upcoming employment law changes and key, recent employment tribunal cases.
Indirect Discrimination
Boohene and Ors v Royal Parks Ltd
The claimants were employed by a contractor working on an outsourced maintenance contract for Royal Parks. Although Royal Parks had committed to ensuring its employees earned at least the London Living Wage (LLW), it did not require the contractor to pay its employees the same rate.
The claimants, who were mostly from black or minority ethnic backgrounds and thus more likely to be in outsourced roles, brought indirect race discrimination claims against Royal Parks.
The Employment Appeal Tribunal (EAT) initially held that these complaints fell within Section 41 of the Equality Act 2010 – which prohibits discrimination by a principal against contract workers but does not cover issues related to remuneration in their contracts with the contractor – arguing that Royal Parks had effectively set the terms by choosing a contractor that did not pay the LLW.
The Court of Appeal overturned the decision by the EAT, ruling that contract workers supplied by a third-party contractor cannot bring a discrimination claim against the end-user under Section 41 because the alleged discrimination was tied to the remuneration under their employment contracts, not to the relationship between Royal Parks and the claimants.
The court stated that any claim should be directed at the contractor as the employer.
The Court of Appeal’s reversal acknowledges the commercial reality that a supplier’s ability to pay its workers is influenced by the overall contract price.
The Court of Appeal allowed the appeal by Royal Parks.
TUPE Transfers
Bicknell & BMA v NHS Nottingham and Nottinghamshire Integrated Commissioning Board
Mr. Bicknell was employed by a Clinical Commissioning Group (CCG). When the services of the CCG were transferred to the Respondent, Mr. Bicknell’s employment was terminated. He contended that his employment should have transferred to the Respondent under TUPE and claimed he was automatically unfairly dismissed. His union, the second claimant, also brought claims regarding the failure to inform and consult.
The employment tribunal determined that the transfer of Mr. Bicknell’s employment from a CCG to the Respondent did not constitute a ‘relevant transfer’ under TUPE. According to TUPE, this regulation applies only when there is a transfer of an economic entity engaged in economic activities. The tribunal, adhering to the Employment Appeal Tribunal’s judgment in Nicholls v London Borough of Croydon, concluded that commissioning alone does not qualify as an economic activity; the commissioner must also provide goods or services in the market to be considered an ‘economic entity.’ Since the CCG did not fulfill this criterion, it was not regarded as an ‘economic entity.’
While the Employment Appeal Tribunal (EAT) had reservations about the Nicholls judgment that the tribunal had relied upon, it did not deem it ‘manifestly wrong,’ which would have been necessary to deviate from a previous decision. The claims of both Mr. Bicknell and the union were contingent on a TUPE transfer having taken place. Consequently, all claims were dismissed.
National Minimum Wage & Zero Hour Contracts
Taylor’s Services Ltd v HMRC
Taylor’s Services Ltd employed zero-hours workers to travel to various farms across the country to provide poultry services. The workers were collected from their homes by their employer’s minibus. HMRC issued a notice to the employer for underpayment of the national minimum wage (NMW), asserting that the time workers spent travelling to and from their homes to the farms should be compensated at the NMW rate.
The employment tribunal initially agreed with HMRC, applying Regulations 30 and 34 of the National Minimum Wage Regulations 2015.
However, the Employment Appeal Tribunal (EAT) disagreed with this interpretation. The EAT determined that time spent solely on travel is not considered “time work” under Regulation 30 unless specified by Regulation 34. Regulation 34 explicitly states that travel from home to the place of work does not qualify as “time work.” Therefore, unless actual work is performed during the travel, it cannot be classified as “work” under Regulation 30.
The EAT clarified that the requirement for workers to travel using the employer’s minibus does not transform the travel time into work time.
The EAT overturned the employment tribunal’s decision and permitted the employer’s appeal against HMRC’s notices of NMW underpayments.
Election Manifestos
Ahead of the UK General Election on 4 July, we have summarised the main parties’ pledges on employment law, which you can read here.
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Last updated: 27 June 2024
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
