Calculation of holiday pay: British Gas Trading Limited v Lock and another (EAT), Fulton v Bear Scotland
The ECJ had previously ruled that commission should be included in the calculation of holiday pay under the Working Time Directive, with the case then returning to the Leicester employment tribunal to determine Mr Lock’s case under UK law. It held the Working Time Regulations could be interpreted to provide that he should receive normal remuneration (which includes commission and similar payments) during periods of annual leave. British Gas’ appeal against that decision took place on 8 and 9 December 2015 and the decision is expected in the early part of 2016. It is still to be determined what the correct reference period for the calculation of normal remuneration should be.
In Bear Scotland, the EAT will also be asked to reconsider how far back workers can go claiming holiday pay and whether a “three month gap” between payments really has the effect of blocking any right to claim further back payments.
Collective redundancies: USA v Nolan (Court of Appeal), and R v Forsey (Chesterfield Magistrates court)
Employers are required to consult with employee representatives if they propose to dismiss twenty or more employees at one establishment in a 90 day period. Two issues have arisen: what is an establishment (or should dismissals be aggregated across the business?) and when does the duty arise?
United States of America v Nolan (Court of Appeal) involves the closure of a US Army base in Hampshire. After a lengthy detour through the UK courts, to Europe and back, the Court of Appeal must now decide whether the duty to consult employee representatives arises at the point that a business decision is considered which, if made, will result in redundancies, or only once the decision has been taken. . Meanwhile, a former director of USC (owned by Sports Direct) is facing criminal proceedings in March for failure to file an HR1 form notifying the Secretary of State of proposals to make collective redundancies. If found guilty, he may be subject to an unlimited fine and/or disqualification from acting as a director for up to 15 years. The former directors of City Link, a courier company which was put into administration on Christmas Eve 2014, were recently found not guilty of the same offence.
Whistleblowing: Chesterton Global v Nurmohamed (Court of Appeal)
A disclosure is not protected, and therefore a worker entitled to whistleblowing protection, unless the employee reasonably believes that the disclosure is being made “in the public interest”. In Chesterton, the EAT held that a disclosure which affected 100 co-managers and fellow employees were sufficient to meet this requirement; in another case, Underwood v Wincanton plc, the EAT considered a contractual dispute about allocation of overtime between four employees and their employer was capable of being a protected disclosure. The Court of Appeal will hear Chesterton’s appeal in October 2016.
Employment tribunal fees: R (on the application of Unison) v Lord Chancellor and another (Supreme Court)
Employment tribunal fees were introduced in July 2013 and the trade union Unison has so far been unsuccessful in its judicial review applications challenging the fees system. In the most recent attempt, the Court of Appeal rejected Unison’s challenge to tribunal fees but did say that the decline in claims is “sufficiently startling” to merit a review of fees to prevent individuals being priced out of bringing a claim. Unison has applied for permission to appeal to the Supreme Court.
Meanwhile, the Scottish government has announced it intends to abolish tribunal fees in Scotland (although no date has yet been given).
Equal pay: Brierley and others v Asda Stores (employment tribunal)
The Asda case is thought to be the first large-scale equal pay claim brought against a private sector employer, with another case expected against Sainsburys. In the group claim against Asda, the claimants are seeking to compare their jobs in retail stores as being of equal value to those of colleagues in distribution centres. If the female claimants succeed, their male colleagues in retail stores would also be able to make equal pay claims.
Employment status: Pimlico Plumbers v Smith (Court of Appeal), and Uber drivers (employment tribunal)
Uber estimate that next year there will be 42,000 Uber drivers working in London. Some of those drivers (supported by the GMB union) are claiming that they are workers, entitled to the minimum wage, paid holiday, a cap on their maximum working hours and rest breaks. The tribunal case is due to be heard in July 2016. Of relevance to that decision may well be – if available by then – the Court of Appeal’s decision in the Pimlico Plumbers case, which will consider whether plumbers who were stated to be self-employed are actually “workers” for employment law purposes.