“All that glisters…” (in the gig economy)

WynLewis

 

… “is not [necessarily] gold”,

is something that employers, contractors and self-employed people will need to remember since it was decided recently that Pimlico Plumbers’ staff and Hermes’ couriers were all workers (not self-employed contractors) entitled to worker benefits.

“But what’s this all about?” you may be asking.

It’s to do with the situation when individuals who provide personal services, who have previously been excluded from employee status by being called “consultant” or “freelance”, are having their worker entitlements “upgraded” from few (or none) to better (or full) protection.

The winners are (1) oppressed individuals whose lot has been limited; and (2) HMRC, which will get more cash via PAYE.

The losers are (1) employers, for whom engaging staff will cost more; and (2) end-users, for whom services will cost more.

So if you thought Pimlico Plumbers were already expensive, don’t be surprised if they’ll be even more so in future.

Two case reported in June 2018 have again turned the spotlight on this issue:

Pimlico Plumbers’ operatives were treated as self-employed. This was because they could provide substitutes, could choose not to accept work and could offer themselves for assignments. So Pimlico was an operative’s client, not their employer.  This was even though they drove Pimlico vans, wore Pimlico clothing, were tracked, had Pimlico ID cards, were bound by post-termination restrictions, had fixed rates and were tightly controlled by HQ.  Then one operative claimed unfair dismissal, wrongful dismissal and compensation for discrimination.  The issue was this:  whether the control by Pimlico, as well as the extent to which its operatives provided personal services (as opposed independent services via the Pimlico brand) tipped the balance away from self-employed in favour of worker (but not employee) status.  The answer was:  it did.

Hermes’ courier operatives were treated similarly. An employment tribunal held that they had little autonomy, were controlled by Hermes, had an obligation to provide their services personally and couldn’t engage in a way that let them look after their own interests (Hermes’ interests came first) such as negotiating their rates.  The judgment will affect around 14,000 Hermes couriers and Hermes has decided not to appeal the decision.  So if you use couriers a lot, don’t be surprised if they get more expensive to fund Hermes’ increased worker costs.

One effect of these decisions may be that workers may eventually get holiday pay, sick pay, minimum wage, time-off and family-friendly rights, insured benefits, quasi-unfair dismissal rights and other termination (including redundancy pay) entitlements.  Many people will say:  “And why not?”.

The story continues, because (1) the 2017 Taylor Review, since subject to Government consultation, may result in a major re-think of employee, worker and self-employed status; and (2) the confusion and expense caused by worker status may increase if there is a shortage of personnel post-Brexit, where people will be more assertive about their status in a market where employers must vie more for the attentions of a smaller workforce.

“Mum’s the word…”

JonathanGolden

 

Silent Witness is a TV show where key characters actively search for forensic evidence.  But don’t take this approach in an Employment Tribunal!

I was recently part way through a case where one of my witnesses thought it might be a good idea to find some extra evidence overnight to assist the Judge.  He knew he wasn’t supposed to discuss the case with us or the other witnesses, but didn’t think that he also had to keep mum generally while under oath.  The other side found out what happened and, the next day, the witness received a royal rebuke from the Judge, who made it clear that, when giving evidence, a witness must not speak to anyone about a case.

This particular judge was benign by giving only a warning.  It could have been worse:  claims by a Ms. Chidzoy against the BBC for whistleblowing and sex discrimination were struck out entirely when it was found out she had discussed her case with a journalist during a break while  still giving evidence. The Employment Tribunal weren’t interested in what had been discussed; it was the mere fact that she had discussed her case was enough for it to conclude that her conduct was unreasonable.  And that was the end of that.

This is part of the wider issue that, when under oath, witnesses must do what a court or tribunal orders, and answer truthfully any questions put to them.  Not doing this is contempt of court.  In fact it was reported recently that a Mr. Atwal, a DJ from Birmingham, who had claimed that his career had been destroyed by medical treatment in 2008 and wanted damages of £837,109 for loss of future earnings and the need for care, was lying, as his music videos showed.  Having done so, he is now facing a possible 2 year jail sentence.  Another case in 2016 related to a juror who did some online research about a defendant and shared the results not evidence before the court) with other jury members, resulting in the case being abandoned; he was sentenced to 9 months’ jail, suspended for 12 months.

The reality is that, in any case, people have different versions of the same story.  A court or tribunal then has to decide who to believe.  There’s always a risk that a judge thinks that evidence given is a lie (i.e. contempt of court – which is itself punishable).  For this reason, judges will say they “prefer the evidence of A rather than B”, and if they feel B was being misleading, may add that they found B to an “unreliable witness”.  Elegant, but effective.

Getting back to the TV show, last minute forensics are not the way to succeed in litigation: cases are won by getting the evidence right long before going to court or tribunal, and then giving truthful evidence under oath and taking care not to speak about a case while under oath (which can make a weekend seem like a very long weekend).

Being a Silent Witness can be tough.

Feeling furtive?

WynLewis

Private emails at work – the latest twist

Furtive” is how many employers feel when they look at the private emails of a staff member who is the subject of a disciplinary investigation.

The reason is the tension between an employer’s wish to check on what their employees are doing, and what those employees regard as their right to privacy,  even when using a work-related email account for private messaging.

This tension was illustrated by the recent case of – Barbulescu v Romania  which shows that the position is still not crystal clear.

The story went like this:

–  Mr Barbulescu was dismissed for personal internet use at work, contrary to the employer’s strict rule against any personal use of its systems;

–  as part of its investigation, the employer accessed intimate messages sent by the employee to his fiancée and to his brother;

–  these messages were printed by the employer and used in the disciplinary proceedings as well as in Mr Barbulescu’s subsequent court challenge;

–  the Romanian courts held that Mr Barbulescu’s dismissal was lawful (it found the employer was entitled to check that work was being done properly and that Mr Barbulescu had been given notice of the rule against personal use of company resources and that surveillance would occur);

–  the European Court of Human Rights also held that the monitoring of Mr Barbulescu’s internet usage and the use of the Yahoo! messages in disciplinary proceedings was a proportionate interference in his “Article 8” rights.

The media:

–  interpreted this as a further encroachment on to workplace rights; and

–  gave the (misleading) impression that the decision gave employers carte blanche to snoop on employees’ personal emails.

They were wrong.

In fact the legal position is like this:

–  Article 8(1) of the European Convention on Human Rights states that “everyone has a right to respect for his private and family life, his home and his correspondence“;

–  this is a right to communicate (which means by letter, email and phone call) without interception or screening by a third party and amounts to a reasonable expectation of privacy;

–  but that right (and that expectation) vanishes if interference (1) is in accordance with the law, (2) is necessary in a democratic society, and (3) is in the interests of national security, public safety or the economic well-being of the country; for the prevention of disorder or crime; for the protection of health or morals; or for the protection of the rights and freedoms of others;

–  so there’s a lot of scope for sensible and proportionate (and lawful) monitoring – and, provided that the safeguards in the various guidelines set out in the data protection codes of practice for monitoring are followed – there should be no problems;

–  this is why the law is framed as a right to respect for privacy, not a right to actual privacy;

–  and in this case, the interference with Mr Barbulescu’s Yahoo! emails was appropriate, given the need to balance an expectation of privacy against an employer’s wish to verify that employees are working during working hours.

But what about real life?

–  isn’t a blanket ban on all personal internet use at work excessive?

–  how can people juggle longer working hours with outside activities if there is no “down time” to deal with those outside activities?

–  smartphones make personal use of the employers’ systems less of a necessity (and make monitoring of their workplace activities by employers harder);

–  the BYOD trend is leading to an even greater blurring between the private and the professional in many workplaces.

Pulling this together:

–  you can monitor workplace communications;

–  but you have to do it in a reasonable and balanced way;

–  any monitoring is unlikely to be reasonable or balanced if you haven’t warned your employees in advance what you may be doing;

–  so it helps (a lot) to have a policy in place that says what you’re entitled to do and what you will do if a need to monitor arises.

Whether governments abide by the laws they impose on their individual and corporate citizens is, of course, a different issue.

And here is the news from abroad…

WynLewis

Are you liable if you dismiss an employee working abroad?

Once again the Courts have gently moved the goalposts that determine whether someone working abroad can bring an unfair dismissal or discrimination claim in the UK Employment Tribunals.  Is the recent Olsen v. Gearbulk case below the final position (or just the latest nudge)?   Or will there be more nudging to come?  The last word probably hasn’t yet been written.

I advise quite a few UK organisations that have an international brand and a global reach.  This doesn’t mean that they export products to the rest of the world.  It means that their staff work abroad in different parts of the world, usually on UK contracts, but only rarely come to the UK, even though the UK is perceived by them (and the colleagues they work with abroad) as “home”.

Several of these organisations are charities or NGOs; the others are banks, insurers, law firms and other large commercial organisations.  Superficially they don’t have much in common.  But what they do have in common is that they never know if they’re at risk of having a UK claim brought against them after terminating the employment of an employee working abroad; nor is there a definite answer to that dilemma.

These were the main facts of the Olsen v. Gearbulk case:  Mr Olsen was Danish; he lived in Switzerland; he was an employee of a Bermudian company; he had been offered, but rejected a UK law contract that would have based him in the UK; instead he had a contract governed by Bermudian law to work in Switzerland; he managed about 100 employees internationally including up to 20 in the UK; he spent more time in the UK than in any other international office and was paid in Sterling; but he structured his time so that he worked for fewer than 90 days in the UK and so wasn’t resident for UK income tax.  Despite this, when he was dismissed (he said following a whistleblowing disclosure) he brought an unfair dismissal claim in the UK.  But the ET and the EAT held that there was an insufficiently strong connection with the UK and so his claim was rejected.

That’s a no-brainer” you might be thinking.  However no one set of circumstances is identical to the next.  So no one decision will necessarily be simpler or more difficult than the next.  Consequently employers need better guidance, even though there has been a string of cases that have developed different tests to decide whether a UK ET has jurisdiction to deal with dismissals or discrimination occurring abroad.  This blog is no place to analyse those cases in detail.  But here is a possible approach for starters:

–    the Lawson v. Serco tests: does the employee ordinarily work in GB?  Does a peripatetic employee ordinarily work / get paid in / pay tax in GB?  Can the employee’s work abroad be regarded as being in a British enclave (shades of Rupert Brooke’s “corner of a foreign field”); is there an equally strong connection with GB and with British employment law? (2006)

–    the Duncombe test:  does the employment have much stronger connections with GB and with British employment law than any other system of law? (2011)

–    the Ravat test:  does the employment relationship have a stronger connection with GB than with a foreign country where the employee works and is there a sufficiently strong connection with the UK that Parliament would have regarded it as appropriate to hear the claim? (2012)

–    the van Winkelhof test:  is it possible to identify factors that are sufficiently powerful to displace the territorial pull of the place or work abroad? (2012)

All of the above tests are, admittedly, a bit vague.  That said, they have a pragmatic “you’ll know an elephant when you see one” approach that most employers will be capable of applying.  So if the answer to any of the “abroad” tests outlined above is “yes” you should be assuming that there is a risk of a UK ET claim and head in the direction of a Settlement Agreement.

In passing, it’s also wise to ask another question:  are any “in-country” employment rights triggered abroad in the location where a terminated employee has been working?  If you get that wrong, an employer can end up paying substantial damages, because far more countries than you might imagine have highly developed employment law rights with compensation entitlements.  Don’t successfully avoid or minimise UK liability but end up being liable abroad.

George Michael, Faith and Final Warnings

JonathanGolden

Have faith – final warnings are useful.

They are easily given, difficult to appeal and can be relied on.  A tribunal can’t generally look behind a final warning and if an employee with a final warning steps out of line again, even in a relatively minor way, they can legitimately be dismissed for misconduct.

But what happens if the final warning was given in bad faith?  Surely, the process is unfair?

The answer is:  yes, it is.

However it took two appeals and for the matter to come before the Court of Appeal in Way v Spectrum Property Care Ltd  for this principle to be applied.

The facts are not particularly interesting.  All we need to know is that a final written warning had been given by a lone manager looking to hide his own misdemeanour, where the final warning was, on its face, valid and Mr Way had not appealed it.  This is what happened afterwards:

–     When Mr Way was later dismissed for another case of misconduct, which on its own would not have justified his dismissal, the employer refused to accept that the earlier final warning decision was unfair.

–     The Tribunal itself also chose not to investigate the issue, because Mr Way had not appealed the decision at the time and had accepted, in his second disciplinary hearing when he was dismissed, that the employer had genuinely believed that there had been no bad faith in relation to the earlier final warning.

–     The EAT too agreed that the employer could rely on the final warning.  They said that even if the Tribunal had considered evidence which had demonstrated that the final warning was given in bad faith, the decision would have been the same because, given the particular circumstances of the case, the employer could rely on a final written warning.

There are good reasons why both tribunals did not want to look behind the final warning:  deciding whether an employer’s decision to dismiss is fair is already time consuming, but having to consider the fairness of earlier warnings adds another level of complexity and time, which the tribunal system would prefer to avoid.

But the Court of Appeal disagreed with taking shortcuts.  It said that if the final warning was needed in order to justify the dismissal, then the tribunals needed to be satisfied that the final warning was given in good faith.  If there is any doubt, then it is for the Tribunal to investigate this and make a determination.  It made no difference whether the employer, when it reviewed the decision later, thought the final warning was made in good faith.   So the case has been sent back to the Tribunal, to review both the original final warning and the later dismissal decision.

The practical (rather than legal) mistakes in this case were that Mr Way’s representative did not press the bad faith point sufficiently with the Tribunal when it first heard the case and, because the employer had no interest in pressing this point, the Tribunal did not pursue it either.  So the lessons are:

–    If you as an employer want to rely on a final warning, then make sure that you are satisfied it was given in good faith.  Don’t bury any concerns.  Deal with it.

–    If the employee challenges the final warning in tribunal but does not follow through, don’t bury the allegation.  Still deal with it.

The temptation is not to look for trouble, and ignoring things does work some of the time, but if you have a determined employee (especially if they are supported by a union), cutting corners is a false economy.

Or, as George Michael put it in his 1980s lyrics:  “Well it takes a strong man baby, But I’m showing you the door, ‘Cause I gotta have faith, faith, faith”.

When is a decision to make redundancies not a decision?

WynLewis

Collective redundancies just got more complicated… again.

It’s a shame, because they had become simpler after the Woolworths case confirmed that you only have to focus on establishments within a business (rather than on a business as a whole) when deciding whether to consult collectively in a redundancy situation.

Problem:  the trigger point for when an employer has to start consulting about collective redundancies may have been brought forward to a time that many employers would regard as being no more than an in-principle (not a final) decision. This brings uncertainty.

Facts:  the E. Ivor Hughes Educational Foundation operated a girls’ school. Due to a projected decline in the number of pupils, it was decided in February 2013 to close the school unless numbers increased. Due to the subsequent actual decline in the number of pupils, it was decided in April to close the school at the end of the 2013 summer term. All 24 staff were then given notice of dismissal on 29 April (4 days after the decision to close the school had been taken) to expire on 31 August. No collective information or consultation was carried out (apparently the Foundation had taken no legal advice and so didn’t know about the need to consult). The staff then brought claims for a Protective Award for failing to consult and won the maximum 90 days’ compensation. This was costly for the Foundation, whose appeal against the Protective Award failed.

Issue:  you might be forgiven for thinking: “Serves Them Right”, given that dismissal notices were served only 4 days after the decision to close had been given; and given also that the Foundation apparently took no legal advice. But the issue is this: should the Foundation have started consultation in February 2013 (when they took an in-principle decision to close the school if pupil numbers remained low); or could they have waited until April (when their in-principle decision was converted into an actual decision) before starting consultation?  Supporting this proposition are the follwoing points:  (1) an in-principle decision about having to make redundancies was only speculative and fell well short of the need to “propose” redundancies (the UK legislation trigger – which is more specific than the comparable EU legislation that refers to the broader need to “envisage” redundancies); and (2) the trigger for having to consult collectively should have been activated only after the need to make redundancies changed from being speculative to definite (when there would have been at least half a chance of avoiding liability for Protective Awards if dismissal notices had been delayed for 30 days’ consultation).

Judgment:  the Tribunal accepted that the final decision to close the school was deferred to April 2013, but that a decision had already been taken in February that, unless pupil numbers improved, the school would definitely be closed; and that this conditional decision amounted to a proposal to dismiss (because even though it was less than an actual decision, it was more than a possibility and compelled the School to plan for collective redundancies) that triggered the need to consult collectively. The Tribunal also decided that there were no special circumstances (such as the adverse effects on the school and on pupil numbers of a “leak” of its parlous state) that would have made consultation impractical (which would have reduced or diminished the Protective Award). All of these findings were endorsed by the Employment Appeal Tribunal.

Lessons:  when faced with the possibility of 20 or more redundancies either (1) make sure that no decision is made (whether an actual decision, or a conclusion that would have the effect of you acting in the same way as if a decision had been made), or (2) start the consultation process immediately (however vaguely and for at least the minimum 30 or 45 days) because criticism of your transparency will be cheaper than a Protective Award.

Too many tweets …

CarolineLeaver

.. made for a fair dismissal in the case of Game Retail Ltd v Laws – although it was the content and context of Mr Laws’ tweets that were the problem, not their number.

This was one of them:

This week I have mainly been driving to towns the arse end of nowhere… shut roads and twats in caravans = road rage and loads of fags smoked’.

“Not so bad”, you might say.  “I’ve heard worse on daytime TV”, you might also say.

And an Employment Tribunal seems to have taken a similar view, when it decided that Mr Laws’ more offensive and expletive laden tweets (28 of them) were misconduct, but not gross misconduct, so Game Retail’s decision to summarily dismiss Mr Laws fell outside the band of reasonable responses.

The Tribunal’s reasoning was:

  • The tweets were posted for private use and it had never been established that any member of the public or employee of Game Retail had access to Mr Laws’ tweets or associated him with Game Retail.
  • Game Retail’s disciplinary policy did not state that inappropriate use of social media could result in dismissal without notice.

It seems, however, that the Employment Tribunal had failed to understand how Twitter works.  The point was that, although Mr Laws’ Twitter account was a personal account, he had no privacy settings, so his tweets were visible by default, he could be seen by staff and potential customers, and 65 Game Retail stores were following Mr Laws (although whether an employer should be following a member of staff is another issue…).

As a result the Tribunal were criticised for asking the wrong question.  Instead of asking whether the tweets had offended anyone, the correct question was whether Game Retail had been entitled to reach the conclusion that the tweets might have caused offence.

The answer to that question (based on the above example of one of Mr Laws’ tweets) was “yes”.   The factual points were (i) the Tribunal had found that the tweets were offensive, (ii) a manager had reported them, and (iii) 65 stores had access to them.  Therefore, it was inconsistent for the Tribunal to conclude that the reputational risk to the business was only theoretical.

Consequently Mr Laws’ dismissal was fair – which will be welcome news for those employers who invest considerable time and money in reputational management and CSR, and who will prefer not to have those efforts undermined by careless tweeting.

So is Facebook the same?  Interestingly, Mr Laws’ case was decided differently to a previous High Court ‘Facebook’ case (Smith v Trafford Housing Trust) in which an employer had not been entitled to characterise the posting of views about gay marriage on an employee’s Facebook wall as misconduct.   This may be because Twitter has a more public nature than Facebook, making dismissals relating to offensive tweets easier to defend for employers than a similar Facebook status.

This case is a reminder that businesses should review their social media policies and ensure that Twitter is included and that their staff understand what is acceptable and what will be misconduct.

A word of warning – if any business believes that Twitter isn’t relevant, consider this: in Q1 of 2007, 400,000 tweets were posted, whereas in 2012 over 100 million users were posting some 340 million tweets per day.  If you are an employer or an employee don’t get caught out…

You did, You didn’t, You did, You didn’t

WynLewis

Varying terms and conditions of employment can be a risky business.
How often have you, as an employer, wanted your employment terms and conditions to be just a little bit different?

How often has this wish led you to decide that you needed to change those terms and conditions, but were concerned about how to go about doing it effectively?

Faced with this situation, some employers just “do it” and see what happens. It’s not a particularly bad ploy if the changes are modest; and it’s quite useful if you have a “we can change your terms and conditions” provision in your contracts. The reason is that if nobody objects to the change before or after their next salary has been paid, you’ve got a good chance that it will stick.

But you won’t want to do this if the change is more significant and involves something that isn’t clearly a policy that can be modified on notice and at your discretion. The reason is that you can get legacy claims crawling out of the employment woodwork many years after a change has been made – when you thought you were home and dry on the variations front.

Not being home and dry, but up the creek and wet without a paddle, can be damaging for the bottom line and does no good for staff relations either.

The reason is that, strictly speaking, any change to a contractual provision (no matter how small, and even though you have a “we can change your terms and conditions” provision in your contracts) requires consent. And if you don’t have consent, then the person who hasn’t agreed to the change can insist on the original version applying.

Subject, of course, to a wrinkle: an employer can also make it clear that a change – one that ought to require consent – will be regarded as effective unless an employee specifically objects to it.

This little wrinkle was the subject of the recent case of Wess v. Science Museum Group, when Mrs Wess failed explicitly to object to a reduction in her notice entitlement from 6 months to 12 weeks and was then dismissed approximately 9 years after the reduction in notice was first notified to her. The Employment Tribunal held she was, indeed, entitled only to 12 weeks’ notice after all – because not only had she not objected to the change in her notice entitlement, she had also objected and assented to other (unrelated) changes that had been made at the same time.

So: if you want to make a change and it’s more than a small one, either get agreement; or notify people of that change and cross your corporate fingers to see what happens; or make a few changes and see which ones are objected to. But don’t just sneak in a big change, because the difference between the old and the new terms may come back to bite you.

Yeah, but No, but Yeah, but No, but…

WynLewis

This is an important update to a warning we gave on restrictive covenants in our blog of 22 April 2014 Can a court rewrite a non-compete restriction in favour of an employer?“, when my colleague Jonathan Golden wrote about the unusual case of Prophet v. Huggett, in which the High Court re-wrote a badly written restrictive covenant, in order to make it “work” in a business context.

The case was surprising, because the High Court didn’t follow the usual principles that (1) a court can’t rewrite a covenant to make it enforceable because it’s too broad, and (2) if there are alternative readings of a clause, the court should use the reading of the clause that would be more enforceable.

The facts: were that Prophet was a software company; a restrictive covenant prevented Mr Huggett from selling Prophet’s software after he left; he joined a competitor that sold competing software, but which wasn’t actually Prophet software (only Prophet sold Prophet software); as a result of which the restrictive covenant provided no protection to Prophet.  However the High Court took it upon itself to extend the restriction to “similar” software and, as a result, gave Prophet the protection it wanted.

That judgment has proved to be less than prophetic.  It seems that the Court of Appeal has now agreed with the rest of us that the High Court was wrong and has confirmed that if a covenant is badly drafted, then the parties are stuck with it (and with its consequences). The Judge couldn’t have been clearer when he said about the previous decision: “It was not for the judge nor is it for this court to re-make the parties’ … bargain”.

The lesson:  make sure your covenants are up to date, accurate and fit for purpose, because you’re going to have to rely on what they say, rather than on what you would have liked them to say.

Employment Tribunals -1 : UK Government – nil

CarolineLeaver

It is unusual for a case by an Employment Tribunal to be reported, since published decisions tend to be by the higher courts.  However Tirkey v Chandok and another has been widely reported as pre-empting a proposed change to legislation that is not expected to be made until after public consultation is completed in 2015.

The reason for reporting this particular decision was that the Tribunal decided to include “caste” in the definition of race in the Equality Act 2010 (the Act).  As drafted, the Act does not refer to caste, but the definition of “race” is non-exhaustive and includes “colour; nationality; ethnic or national origin”.  The use of “includes”, rather than “means”, itself means that there is scope for other attributes to be covered by “race”.  One such attribute could be caste.

The caste system is a traditional social stratification, emanating from the Hindu tradition, which encompasses various “classes”, each of which is associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity.  Caste status is immutable and hereditary, and is often linked to matters such as geographic origin and language. It is associated primarily with South Asia, particularly India.

The nature of caste means that there is an inherent risk of someone from one caste being treated less favourably than someone from another caste.

This case involved a domestic live-in servant who was employed by a couple to work for them originally in India, and then in the UK.  She is part of the Adivasi caste, which is known as a “servant caste” and she brought numerous claims against the couple alleging poor treatment, including being required to work 7 days a week (6am to 12.30am), that she was not allowed to sit on the same furniture as the family, and was made to use separate crockery and cutlery, because higher caste people would not touch plates and cups that she had used.  She claimed that the reason why she was recruited and treated in the manner alleged was that her employers concluded that she was of a lower status to them, and that this view was tainted by caste considerations.

The Employment Tribunal decided that the existing race discrimination provisions in the Act did cover caste, because “ethnic origin” for the purposes of the Act is a wide concept. This was despite an earlier Tribunal decision in which a caste discrimination claim was rejected, partly on the basis that the government had not yet activated the power in the Act to provide expressly for caste to amount to an aspect of race.

As the formal introduction of caste discrimination is delayed until after consultation has been completed (and in theory, there is a risk that the proposal to include caste as an element of race may not happen), this is a useful case. However, as it is only an Employment Tribunal decision, there is scope that it will be appealed, or not followed by a different Tribunal.