What’s new in Employment law and HR – July 2020

The Furlough scheme continues to dominate the headlines but here is a round-up of other recent employment law news:

Employment Status: Ex- Great Britain cyclist loses appeal against employment status ruling

There was disappointing news for ex-GB cyclist Jess Varnish who failed to prove that she was an employer or a worker of UK Sport or British Cycling at an Employment Appeal Tribunal.  

Jess Varnish brought claims of wrongful dismissal and sex discrimination against British Cycling and UK Sport after she was dropped from the GB team in 2016.   Ms Varnish’s complaints included a claim that after she was dropped from the GB team she was told to “go and have a baby” by the former technical director of British Cycling.  However, to pursue her claims, she first had to prove she was either an employee or a worker of UK Sport or British Cycling.   

When she lost her claim in the Employment Tribunal last year, she decided to take her fight to the Employment Appeal Tribunal which handed down its judgment last week. 

Ms Varnish argued, among other things, that she was subject to a high degree of control by her coaches and that this was a clear indicator that she was a worker or an employee (control is a significant factor in the assessment of whether someone is employed or self-employed).   However, the Employment Appeal Tribunal upheld the earlier tribunal decision and concluded that the relationship between Ms Varnish and the governing body was more like that of a student receiving a grant. 

It is almost inevitable that Ms Varnish will no longer now be able to pursue her claims of wrongful dismissal and sex discrimination against British Cycling because of the ruling on her employment status.   At the time of writing we do not know whether she intends to appeal the decision. 

The case has been hailed as a landmark case and will no doubt come as a huge relief to British Cycling and to UK Sport as a whole, who feared that a successful outcome for Ms Varnish would have led the way for other funded athletes to claim employment rights. 

Redundancy Process: EasyJet’s redundancy selection programme makes the news

There was controversial news about EasyJet’s redundancy programme when it was claimed by the pilots’ union that the airline was intending to use pilots’ sickness records as one of its criteria for redundancy selection.  

EasyJet is planning to make over 700 pilot redundancies as part of a wider restructure that will see over 4,500 redundancies being made across its business.   EasyJet has denied that absence will be a significant criterion for selection but has admitted that general absenteeism will form part of its assessment.   It has also stressed that any consideration of absenteeism would be based on data from before the coronavirus epidemic. 

Why is it controversial?

Because the use of absence records as a key criteria in selecting employees for redundancy carries the risk of discrimination claims arising if the absence is related to a “protected characteristic” such as disability, pregnancy or maternity.   However, is it not unlawful, per se, to use absence as a criterion provided employers take into account the reason for such absences and it is only one of a number of measurements used to select employees for redundancy.

National Minimum Wage: Boohoo suppliers

There was disturbing news in the British clothes industry when it was revealed that British retailer, Boohoo, had been sourcing clothes from a factory in Leicester  who had been paying their workers less than the minimum wage.

In some cases, workers were paid as little as £3.50 per hour – the national minimum wage for workers over the age of 25 is £8.72 per hour. 

It was also reported that most of the workers at the factory were working without facemasks to protect against transmission of the Coronavirus and that the factory was still operating during the localised lockdown in Leicester. 

After the news broke, Boohoo – who owns brands such as NastyGal and PrettyLittleThing – issued a statement saying it was investigating the Leicester supplier and its manufacturing supply chains. 

However, the fast fashion company’s association with the exploitation of workers was too much for some retailers and Next, Asos and Very announced they were temporarily dropping Boohoo goods from their websites.

The case highlights the importance of having transparent supply chains and putting in place the necessary systems and controls aimed at ensuring that the exploitation of workers is not taking place in any of your supply chains.