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Employment Law Journal: December 2016/January 2017

Will Hampshire and Richard Kenyon outline ten key developments that the next 12 months have in store for employers and their advisers

Back at the beginning of the 19th century, skilled artisans in the textile industry were locked in a fierce battle with a rising class of industrialists. The Luddites smashed the new looms which they said produced cheap, inferior goods that threatened their way of life and protested against wage cutting and the use of unapprenticed youths as cheap labour. The state deployed the army and introduced legislation banning trade union organisation and making loom smashing a capital offence. People were killed on both sides and a number of Luddites were hanged.

A controversial judgment has reignited debate about the conflict between protection from discrimination and the values of organisations and their workers. Phil Allen explains

The judgment of the Northern Ireland Court of Appeal in Lee v Ashers Baking Company [2016], better known as the Bert and Ernie cake case, has led to considerable debate. On the one side was a family-run company that did not wish to make a product endorsing something with which the owners did not agree, based on their religious ethos. On the other was a customer who had the right to order what he wanted without discrimination on the grounds of his sexual orientation.

Angharad Harris explores ways for employers to deal with vexatious litigants, such as job applicants simply seeking a discrimination award

The term ‘vexatious litigant’ is bandied around in the context of employment tribunal claims. Indeed, while the government did not explicitly say that it intended the introduction of tribunal fees in 2013 to deter vexatious claims, this was referred to in the consultation and ministers have subsequently claimed that fees have had this effect. It has, however, always been rare for employers and their advisers to have to deal with a genuinely vexatious litigant – as opposed to one whose claim is simply weak or unmeritorious. The cases discussed below consider what makes a claimant ‘vexatious’, what the difficulties are for employers and their advisers when they are faced with a serial litigant and what tools are available to use in these circumstances.

Diane Nicol gives her tips on how employers and their advisers can enjoy the festive season by taking steps to reduce the risk of litigation

Christmas has traditionally been a time of cheer and goodwill to all men. For employers however, it can present significant challenges, ranging from incidents at, or relating to, Christmas parties to the increased workload for employers like Royal Mail, Amazon and high street retailers.

Jo Broadbent rounds up recent case law and developments affecting employers and their advisers

Anthony Sakrouge looks at the key lessons from Uber’s failure to convince the employment tribunal that its drivers are self-employed

The recent decision in what has been dubbed ‘the employment case of the year’ (Aslam and v Uber BV [2016]) again confirms employment tribunals’ willingness to disregard written contract terms where these do not reflect reality, adopting the Supreme Court’s approach in Autoclenz Ltd v Belcher [2011]. The decision has generated huge levels of interest, as few organisations divide opinion more than Uber, which was founded only seven years ago but is now said to be operating in more than 500 cities around the world. It is likely to have reassured those concerned about exploitation in the gig economy (so called because workers are paid per job, or ‘gig’, rather than per hour or month) but worried organisations with a similar business model to Uber.


Sarah Ozanne discusses the forthcoming requirement for banks to share information on any impropriety committed by employees who are looking for a new, senior job in the sector

The new regime to improve individual accountability in the banking sector came into force on 7 March 2016. It originated from the recommendations of the Parliamentary Commission on Banking Standards following its review of the banking system after the financial crisis. The Commission found the Approved Persons Regime to be a ‘complex and confused mess’ and that it had failed as a means for the regulators to engage with individual bankers.