February Newsletter

"The Sun Will Shine On You Again And The Clouds Will Go Away."
Sir Captain Tom Moore
 The Labour Relations Agency has also devised a helpful guide to 'Working from Home' which can be found by clicking here. 

The government is to update the law so that the attorney general can take six months' maternity leave.

Suella Braverman, the government's chief law officer, announced in November she was expecting her second child "early next year".

She would be one of the most senior government ministers to give birth in office.

Under current laws, she would have to resign if she wanted to take time off following the birth.

The government has announced a new law to formalise the process for ministerial maternity leave, which until now has been at the discretion of the prime minister.

The Ministerial and other Maternity Allowances Bill will allow cabinet ministers to receive up to six months' leave on full pay.


UBER BV & Others v Aslam & Others [2021] UKSC 5 

In a ruling handed down on 19th February 2021, the Supreme Court ruled that Uber drivers are workers and not self employed. 

Delivering his judgment, Lord Leggatt said that the Supreme Court unanimously dismissed Uber's appeal that it was an intermediary party and stated that drivers should be considered to be working not only when driving a passenger, but whenever logged in to the app.

The court considered several elements in its judgement:

  • Uber set the fare which meant that they dictated how much drivers could earn
  • Uber set the contract terms and drivers had no say in them
  • Request for rides is constrained by Uber who can penalise drivers if they reject too many rides
  • Uber monitors a driver's service through the star rating and has the capacity to terminate the relationship if after repeated warnings this does not improve

Looking at these and other factors, the court determined that drivers were in a position of subordination to Uber where the only way they could increase their earnings would be to work longer hours.

The key points are:-
  1. a tribunal should examine the reality of the relationship between the parties, and not be bound by what the documentation states. On this analysis, the tribunal was entitled to find that Uber drivers are ‘workers’, not self-employed subcontractors;

  2. the drivers are ‘workers’ from the moment they switch on their apps, and are available for work in their area, to the time when they switch their apps off at the end of the day (or, presumably, for a break).
This means that Uber drivers are entitled to claim minimum wage (including backpay for minimum wage), with their minimum wage claims being based upon their entire working day, not just when they had a rider in their cabs.  Up to two years’ backpay (there is some doubt about this, it could be longer), or £25,000 (whichever is the larger) can be claimed in an employment tribunal, and up to six years’ backpay can be claimed in the county court.
They can also claim 5.6 weeks’ paid annual leave each year, and will have whistleblowing and similar rights.  This judgment does not give them ‘employee’ rights, such as the right to a redundancy payment or to claim unfair dismissal.


⚖️Olufunso Adedeji v University Hospitals Birmingham NHS Foundation Trust; Appeal against the ET’s decision refusing to extend time for the Claimant to bring a race discrimination claim three days out of time. Appeal dismissed

⚖️  Allay (UK) Ltd v Mr S Gehlen; A continuing duty on employers to review on a regular basis their equality and diversity training and ensure that their employees are trained and regularly participate in refresher training throughout the course of their employment.

⚖️  R(on the application of The Motherhood Plan and anor) v Her Majesty's Treasury; High Court rejects maternity-based judicial review challenge to SEISS.

⚖️  Omooba v Michael Garrett Associates Ltd t/a Global Artists & Leicester Theatre Trust Ltd; A sacked actor who would have refused to play the role in which she had been cast as a lesbian because it was against her Christian beliefs made herself “commercially toxic” and her continued employment would have forced the show’s cancellation, a tribunal has heard.

⚖️ Steer v Stormsure Ltd; Cavanagh J found that the failure to provide interim relief for prima facie cases of discrimination or victimisation under the Equality Act 2010 was contrary to Article 14 of the ECHR (prohibition of discrimination). Leave has been granted to the Court of Appeal which has the authority to make a Declaration of Incompatibility. 

⚖️  Queensgate Investments LLP v Millet; Appeal against the ET’s refusal to make an order restricting publicity of a hearing to determine an interim relief application. Appeal dismissed.
Recent guidance issued by the President of the Tribunals in Northern Ireland on the 24th February 2021 provides as follows: 

The President has been informed by the Department that the Tribunals’ building will reopen on Tuesday 2 March 2021 for the following limited purposes: (a) for lodging hard copy paper bundles for hearings by prior arrangement with the Tribunals’ Secretariat; and (b) for staff and the Judiciary to carry out their administrative and judicial functions, which require access to hard copy files and records.
Members of the public and legal representatives should not attend the Tribunals’ building unless specifically required to do so.
Video conferencing equipment is currently being installed to allow for fully remote and/or hybrid final hearings (where cross examination of witnesses is required) to take place from the Tribunals’ building. The video conferencing system will require to undergo testing to ensure it is fit for purpose before it is commissioned for use in hearings as part of a pilot scheme. If this pilot is successful, further video conferencing equipment will be installed in other hearing rooms and the President has been informed that the commissioning of further equipment will take approximately six weeks from the successful completion of the pilot.
In addition, the Department has agreed to seek additional venues to allow fully in person hearings to take place, as soon as possible, where it is safe to do so.   
Arrangements to facilitate public viewing (including by the press) can be made, if required, by contacting the Secretary to the Tribunals.
Presidential Direction
In light of the updated information provided, Review Case Management Preliminary Hearings will be arranged in all cases that have been listed for in person hearings up to the 16 April 2021/23 April 2021 approximately, to consider whether:-
  1. those hearings can proceed by electronic means; or
  2. those hearings should be postponed and relisted;
having due regard to the overriding objective, the views of the parties and the following:-
  1. whether the claim is contested; and
  2. if the claim is contested:-
(a)       the complexity and the number of legal issues to be determined;
(b)       whether it can be determined by legal submissions only;
(c)       the number and nature of any factual disputes between the parties;
(d)       the extent to which oral evidence will be required;
(e)       the number of witnesses who will be called;
(f)        the circumstances of parties and witnesses, including whether reasonable adjustments/special arrangements are necessary to ensure their effective participation;
(g)       the volume of documents to which the Tribunal will be referred; and
(h)       the date when the claim was presented.
Broadway House Chambers Employment Law Team Presents their 7th Annual Virtual Pub Quiz. The event will take place on Friday 5th March 2021 at 8pm on Zoom. To RSVP, please email employment@broadwayhouse.co.uk
m. 07752 370149   
e.  emma.mcilveen@barlibrary.com
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The Bar Library, 91 Chichester Street, Belfast, BT1 3JQ, Northern Ireland
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