Employment cases of 2017
12 December 2017
Before 2017 comes to an end and 2018 presents a new set of employment law challenges, it is time to reflect on the year’s significant cases. Between them, these employment cases developed the law, affected HR policies and hit the headlines in 2017.
R (Unison) v Lord Chancellor and another: Possibly the most significant court decision of the year found the ET fees regime to be unlawful, resulting in its immediate scrapping. Claims dismissed for non-payment of a fee are being reinstated and employers are facing an increased risk of new claims, including out-of-time complaints from workers deterred previously by fees. The Government has commenced the process of refunding ET fees.
King v Sash Window Workshop Ltd: The CJEU decided that ‘workers’ who have been denied paid holiday in the belief that they were self-employed independent contractors can accumulate pay in lieu of holiday from when they start work and can carry it forward for years until their employment is terminated. Employers at risk of having misclassified their self-employed contractor, gig and freelance workforce should assess this new potential liability.
Dudley MBC v Willetts: The EAT ruled that payments made for voluntary overtime that is normally worked and paid on a regular basis must be included when calculating holiday pay for the first four weeks of holiday. This clarified an issue left undecided by previous EAT decisions.
Gig economy and worker status
Uber BV and others v Aslam and others: The EAT upheld a tribunal’s ruling that two Uber drivers who brought test cases against the company were ‘workers’ and were therefore entitled to holiday pay and to be paid at least the National Minimum Wage while working. Uber’s appeal will be heard by the Court of Appeal next year.
Read our briefing: Uber loses appeal against ruling that drivers are entitled to minimum wage and holiday pay
Pimlico Plumbers Ltd v Smith: The CA upheld an ET’s decision that a plumber was a ‘worker’ and therefore entitled to holiday pay and protection from discrimination from the company for which he worked, notwithstanding that he was self-employed for tax purposes. A Supreme Court appeal will be heard in February 2017.
Read our briefing: Court of Appeal ruling on employment status
Dress codes and religion
Achbita v G4S Secure Solutions NV: The CJEU ruled that it will not necessarily be discriminatory for an employer to have a consistently applied rule prohibiting the visible wearing of any political, philosophical or religious sign by customer-facing staff, where the aim is to project an image of neutrality towards customers. However, such a policy could still be unlawful if it is considered to be disproportionate. Caution is needed as the CJEU’s ruling sits uncomfortably with the decision of the European Court of Human Rights in Eweida.
Read the case here
Government Legal Service v Brookes: The EAT decided that an unsuccessful job applicant with Asperger’s syndrome suffered disability discrimination having failed a multiple choice test. This case serves as a timely reminder for employers to review procedures for recruiting disabled candidates, in particular the provision of greater flexibility in psychometric testing.
Read the case here
Chesterton Global Ltd v Nurmohamed: Only disclosures which an individual reasonably believes are made “in the public interest” are capable of attracting whistleblowing legal protection. Here, the CA considered the meaning of “in the public interest”. As a result, employers need to assess carefully the nature of an alleged disclosure, how many it might affect and how, before they assume an allegation relates to a purely personal issue, such as a contractual dispute, and is not therefore “in the public interest”.
Read our briefing: When whistleblowing is “in the public interest”
Trade union recognition
R (on the application of Lidl Ltd) v CAC: The CA upheld a single collective bargaining unit for only 1.2% of employees in an otherwise non-unionised employer, deciding that the CAC was right to reject Lidl’s concerns.
Read our briefing: Court of Appeal upholds small single collective bargaining unit
Proving indirect discrimination
In the linked cases of Naeem v Sec. of State for Justice and Essop v Home Office: A SC ruling made it clear that claimants do not have to prove the cause of group disadvantage in indirect discrimination cases, only that disadvantage exists. The decision strengthens employees’ ability to bring claims of indirect discrimination in some cases, particularly where it is unclear precisely why a particular group is disadvantaged by an employer’s practices.
Read our briefing: Supreme Court considers indirect discrimination
Tribunal compensation: a week’s pay
University of Sunderland v Drossou: A week’s pay is a key part of calculating many workplace remedies such as unfair dismissal compensation. Until this case, it was common practice to exclude employer pension contributions from the calculation of a week’s pay. Here, the EAT decided that this practice was incorrect, in a decision of particular relevance for protective awards which are uncapped.
For more information please contact Diane Gilhooley.