Following on from our blog last week focussing on the employment law legislation to be aware of in the coming 12 months, we turn our attention to highlighting eight cases in the field of employment law which will be decided by the courts and tribunals this year. We believe that each of these cases is likely to have real implications for employers and how they operate on a day to day basis.
Sex Discrimination – Capita Customer Management Limited v Ali (EAT)
The Employment Tribunal (“ET”) in Ali ruled that a male employee had suffered direct sex discrimination as a result of his employer refusing to allow him any period of shared parental leave at full pay, when a woman on maternity leave would have received 14 weeks’ full pay.
This decision contrasts with an ET decision in Hextall v Chief Constable of Leicestershire Police which rejected a claim of a similar nature.
At the heart of these cases is a decision the tribunals were asked to make with regards to whether a valid comparison can be made (for the purposes of the Equality Act 2010) between a woman on maternity leave and a man taking shared parental leave.
The matter is to be considered by the Employment Appeal tribunal (“EAT”), with the decision being one to watch for those who grant full pay to female employees on maternity leave (whether in full or for a set period), but don’t provide for full pay at all under a shared parental leave policy.
Pay and Benefits - The Sash Window Workshop Ltd and another v King (CoA)
The Court of Appeal is expected to hear further argument in the case of The Sash Window Workshop Ltd and another v King to determine whether a worker is entitled to be paid for all accrued but untaken annual leave on termination (no matter in what holiday year it accrued), where the worker has been prevented from using the annual leave by the employer or because the employee has elected against taking the leave because the employer would not pay them.
An opinion was given by the Court of Justice of the European Union (CJEU) last year to the effect that where a worker cannot take annual leave due to the employer not affording them the opportunity to do so, then annual leave will continue to carry over into subsequent leave years. If that situation is never altered, then a payment in lieu of all annual leave accrued but untaken throughout the entire period of employment may be due on termination of employment.
This is a potential headache for employers as the decision of the CJEU leaves uncertain the two year limitation period on unlawful deductions from wages claims and the limitation on claims for historical non-payment of holiday pay.
Disability Discrimination – Donelien v Liberta UK Ltd & Peninsula Business Service Ltd v Baker (CoA)
It is expected that the Court of Appeal will deliver two important judgements in relation to disability discrimination this year.
In Donelien, the EAT made the decision that where an employer had taken reasonable steps, but not all possible steps, to determine whether an employee was disabled, it had done enough to avoid having constructive knowledge of the disability. This in turn meant that if the view formed, having taken reasonable steps to investigate, was that there was no disability, then no obligations under the Equality Act 2010 could apply to the employer.
The Claimant has appealed this decision. This is a complicated area of employment law and so it is hoped that the Court of Appeal will provide assistance in determining how far an employer requires to go in order to ascertain whether or not an individual has a disability.
In Peninsula, the EAT held that a claimant cannot succeed in a claim of disability harassment simply because they have asserted that they have a disability, but it has not been proven that their disability satisfies the definition in section 6 of the Equality Act 2010. In other words, it was unwilling to uphold a claim of disability harassment on the basis of a claim of the Respondent perceived the Claimant was disabled. The EAT’s judgment made clear a Claimant must satisfy the relevant definition of disability to succeed with a claim of disability harassment. This case will therefore determine whether a claim for harassment on the basis of perceived disability status can succeed under the Equality Act.
Equal Pay – Asda Stores Ltd v Brierley and Others (CoA)
An appeal has been made the Court of Appeal after the EAT upheld a claim that a predominantly female group of supermarket retail employees could compare themselves with a mainly male group of distribution depot employees for the purposes of an equal pay claim. This was despite the fact that those male employees worked at an entirely different work location, albeit one where Asda were still responsible for setting the terms and conditions of employment.
The Claimants succeeded in an argument that the fact Asda fixed terms of employment at both locations (and therefore were the single source from which those terms derived from) was sufficient to allow a comparison of terms between the respective groups of workers.
Whistleblowing – Bamieh v FCO and others (EAT)
This case was initially heard in October 2017 but the EAT’s judgement is still awaited and is expected to be given some time in 2018. It is expected that it is going to address important questions regarding whistleblowing. These include:
- The extraterritorial application of the European Convention and Charter
- The correct test to apply for extra-territorial claims against individual respondents
- And the right to sue international organisations.
This case is important as it could have a big effect on whistleblowing and discrimination claims that are brought against individuals who are based overseas and outside the normal territorial jurisdiction of the UK’s courts and tribunals.
Employment Status – Uber B.V v Aslam & Pimlico Plumbers Ltd v Smith (SC)
As was the case in 2017, it is likely that there will be numerous cases on employment status in 2018 given the significance of the gig economy, in particular with regards to whether an individual has “worker” status or not.
After the EAT upheld the ET’s decision that Uber drivers are workers and therefore qualify for certain basic employment law protections (national minimum wage; holiday pay; discrimination protections to name 3), Uber’s attempt to appeal the decision straight to the Supreme Court on the basis it was of significant importance was refused. Consequently, the appeal will now be heard by the Court of Appeal.
The case of Pimlico is also due to be heard in the Supreme Court this year. The Court of Appeal previously held that the plumber was a worker for the purposes of the Employment Rights Act 1996 and the Working Time Regulations 1998.
These cases will be significant for employers who have large numbers of “self-employed” individuals within their businesses and will hopefully provide all with real practical guidance that can be relied upon in deciding what status and rights a particular individual or group are entitled to.
There are hundreds of cases to be decided before the appeal courts this year, so the above is just our view on what we think will be the more noteworthy ones. We will of course report on these as and when judgments are issued.
If you would like further information on any of the topics above, or have any other employment law related query, then please do not hesitate to contact us.
