Small steps – government response to the Taylor Review

The government's response to the Taylor Review (the Review) had the potential significantly to extend rights for workers. However, the proposals released last week are relatively modest at least in the short term.

According to the government press release and response, as result of the Review it will:

• Give all workers a right to request "a more stable contract" in order to provide more financial security for those on flexible contracts;
• Enforce basic employment rights such as holiday pay and sick pay on behalf of vulnerable workers;
• Name and shame employers that fail to pay employment tribunal awards, and increase fines for employers who lose a tribunal claim where the breach has "aggravating features";
• Increase transparency on pay by giving workers a right to an itemised payslip providing a "clear breakdown of who pays them and any costs or charges deducted from their wages";
• Ask the Low Pay Commission to consider higher minimum wage rates for those working non-guaranteed hours;
• Define working time so those working through apps know for what time they should be paid;
• Consider whether it should be easier for workers to trigger formal consultation processes; and
• Raise awareness of flexible working and parental rights, including shared parental leave, amongst employees and their employers.

Of these proposals, the most eye-catching is the right to request a more stable contract. However, assuming that this reflects similar existing rights to request flexible working or training, there is no guarantee that it will actually enable workers to move from zero-hours to guaranteed-hours arrangements.

The government has also launched consultations on enforcement of employment rights, agency workers (including whether the so-called "Swedish derogation" should be retained), increased transparency in the labour market and employment status. However, it has confirmed that it has no plans to revisit the difference in NICs contributions paid by employees and the self-employed, following its 2016 Budget U-turn on the issue.

That hurts. Working time detriment could lead to injury to feelings award

The employer adopted a new shift system which breached working time rules on night work and daily rest periods. Firefighters that refused to volunteer to work the new pattern were transferred to other fire stations. They brought successful claims that the transfer meant that they had been subjected to a detriment because they had refused to comply with a requirement that was in breach of the Working Time Regulations.

The EAT had to decide whether the tribunal could award injury to feelings compensation in a working time detriment claim and found that it could. There was nothing in the Employment Rights Act (the Act under which the claim was brought) that would prevent injury to feelings compensation being awarded in such a case. Injury to feelings compensation was already available in whistleblowing and trade union detriment claims and there was no reason in principle to allow different remedies for different claims. All breaches of the right not to suffer a detriment were statutory torts and akin to discrimination and victimisation claims, in which injury to feelings compensation would be available.

However, even though injury to feelings awards could be made in principle, it would still be necessary to ask whether an award should be made and if so in what amount. This was a question of fact for the tribunal in each individual case.

It's not what you do, it's the way that you do it – transitional pension arrangements were age discrimination

The judicial and firefighters' pension schemes were both reformed in 2015 as part of wider changes to put public sector pensions on a more sustainable footing. Transitional arrangements were adopted in both cases that put those closest to retirement age in a more favourable position than others, because they were entitled to remain in the previous scheme. A second group were allowed to remain in the previous scheme for a more limited period, while the youngest members had to join a new scheme, which offered less generous benefits. The younger scheme members in both cases challenged the transitional arrangements as unlawful direct age discrimination.

The employers accepted that the transitional arrangements involved less favourable treatment because of age, but argued that they were a proportionate means of achieving a legitimate aim. A number of potentially legitimate aims were relied upon: protecting those closest to pension age from the effects of pension reform; to take account of the greater legitimate expectation of those closer to retirement that their pension entitlements would not change significantly; to have a tapering arrangement; and to achieve consistency across the public sector.

The EAT accepted that those were legitimate aims, upholding the decision in Sargeant and overturning the contrary finding in McCloud. The public sector pension changes were being introduced by government, which was entitled to a margin of discretion in the way in which it pursued and implemented social policy. The fact that it was difficult to produce concrete evidence of the moral and political judgments involved in that process did not mean that they could simply be disregarded in establishing whether the state had a legitimate aim.

However, the tribunal in McCloud had gone on to consider whether the transitional arrangements were proportionate if there was a legitimate aim and had concluded that they were not. The employment judge was entitled to conclude that the extremely severe impact of the transitional provisions on younger judges – caused by a combination of pension scheme and tax changes – far outweighed the public benefit of consistency across the public sector. On that basis, the transitional arrangements were not justified.

By way of contrast, the employment judge in Sargeant had found that the transitional arrangements were proportionate. However, she had failed to appreciate the need to scrutinise the changes in their particular context, which was said to be "catastrophic" for the unprotected group in the firefighters' scheme, or to assess whether there was a less discriminatory way of achieving the legitimate aim. The employment tribunal would have to reconsider the issue of proportionality.