In the news this month:

In the new this month: Taking Holidays, Part-Time Workers’ Fair Treatment, Workers’ Rights, Officer Banter and Harassment, GDPR and Emails, Whistleblowing and Banks, Work Life after #MeToo and EU Nationals’ Rights on no-deal Brexit.

Taking Holiday

Kreuziger v Berlin and Max-Planck-Gesellschaft zur Forderung der Wissenschaften eV v Shimizu

The ECJ has determined that a worker does not automatically lose their accrued untaken holiday at the end of the holiday year,, even if contractually specified, because they have failed to seek to take this holiday. However, this loss is permitted if the employer can show they enabled the worker to take this leave, such as through provision of sufficient information such as clarity it will be lost, emails saying it must be taking and basic reasonable assistance to take it. The ECJ also held that domestic courts must interpret their own legislation in line with the EU Charter of Fundamental Rights, which specifies a right to paid leave.

Fair Treatment of Part-time Workers

British Airways Plc v Pinaud

The Court of Appeal held in this case that a part-time employee of British Airways had been treated less favourably than her full-time cabin crew colleagues as she was required to be available for 53.5% of full time hours but was paid only 50% of full pay. The case has been sent back to the Tribunal to consider if this less favourable treatment is justified.

Gig Economy and Workers’ Rights

Addison Lee v Lange & Ors

The EAT has upheld an employment tribunal’s finding that drivers working for Addison Lee were workers and not genuinely self-employed independent contractors.

The EAT agreed with the employment tribunal that there was an overarching contract between the parties. It also agreed with the employment tribunal’s alternative conclusion that during periods when the drivers were logged on to Addison Lee’s computerised system, they were workers. The regular offer and acceptance of work, so that the drivers worked pretty much continuously, fully supported the decision that the drivers were workers. The employment tribunal had been entitled to conclude that the contractual documentation stating the drivers to be self-employed contactors did not properly reflect the true agreement between the parties.

Office Banter and Harassment

Evans x Xactly Corporation Ltd

In an office culture of banter that included jibing and teasing where no one was seeking to offend and no one was found to be offended, the EAT in this case found that calling the employee a “fat ginger pikey” was not race or disability harassment in the particular circumstances here, despite his associations with the travelling community and his Type 1 diabetes. The finding was that the comments were not unwanted as the employee was an active participant in the banter culture, and therefore these comments did not have the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

This is a rare finding, and is certainly not a green light to offensive behaviour. It is a rare example of where the “banter defence” has worked, due to the very clear evidence the employee was an active and willing participant with only tenuous links to the protected characteristics.

Potential GDPR breach where employees check work emails out of hours

Employees who check their work emails on personal devices outside of office hours could be breaching GDPR, a survey has revealed.  Research carried out by Insurance2go found that many participants used their personal devices to conduct tasks such as answering work emails while on their commute, on holiday or at the weekend.

While 14 million employees use a second phone for work-related activities, 18% use their own device because it is better than their work device and 14% consistently use their personal device for ease and familiarity.

Despite the number of people using their personal devices, the report notes that such activity could be breaching GDPR legislation. In particular, the GDPR requires businesses to ensure that any work-related data stored on its employees’ personal devices is as secure as the information kept within its own servers.

Whistleblowing in Banks

The FCA has published a new webpage setting out the findings from its supervisory review of how retail and wholesale banks have implemented its whistleblowing rules; you can view this here.

What next after #MeToo?

ACAS has published new research on the impact of the #MeToo movement on workplace culture, which you can read here.

EU Nationals on Brexit…

A number of further policy papers have been published considering implications in various areas of a no-deal Brexit including in relation to EU Citizen’s Rights in the UK. The paper confirms that in a no-deal scenario the UK would continue to run the EU Settlement Scheme but only for those EU nationals and their family members resident in the UK by 29 March 2019, not 31 December 2020, as there would be no agreed implementation period. EU citizens would have until 31 December 2020 to apply for status under the scheme. Until then, EU citizens could rely on their passport or national ID card to evidence their right to reside in the UK. The UK would also continue to honour the right of those who obtain settled status under the scheme to be able to leave the UK for up to five years without losing their right to return.

Other stated differences in a no-deal scenario would include:

  • The deadline for applications under the EU Settlement Scheme would be 31 December 2020, not 30 June 2021 as there would not be an agreed six-month grace period.
  • EU citizens with settled status could be joined in the UK, but only up to 29 March 2022, by existing close family members who were living overseas on 29 March 2019 provided the relationship existed at that time and continues to exist when the family member applies.
  • The appeal rights open to EU citizens to challenge a refusal of status under the EU Settlement Scheme would be more limited as the ECJ would not have any jurisdiction in the UK.

The paper also calls on the EU and Member States to offer protection for the rights of UK nationals living in the EU in the event of a no-deal scenario.

I wish you a very Merry Christmas and a Happy New Year!