Significant cases to look out for this year
As the new year begins, we have identified a dozen pending cases which could develop employment law, and change HR policies and practices, in 2015:
Employment tribunal fees
Unison v Lord Chancellor: Unison is appealing last year’s unsuccessful judicial review proceedings, which were brought to challenge the introduction of employment tribunal fees. If Unison is successful, the Government (or future Government, post election) is expected to lower fee levels and/or alter remission thresholds rather than abolish fees altogether.
Meaning of ‘temporary’ agency worker
Moran v Ideal Cleaning Services Limited: The Court of Appeal is set to determine whether agency workers placed on assignment for indefinite periods fall within employment protection offered by the Agency Workers Regulations 2010, which refer only to ‘temporary’ assignments. The Employment Appeal Tribunal ruled that they do not if the assignment lacks a defined period.
Permanent health insurance and TUPE
BT Management Services v Edwards: Last year, an Employment Tribunal concluded that when an employer outsourced its field operations, a telecoms engineer in receipt of permanent health insurance was not assigned to the organised grouping of resources or employees and therefore did not transfer employment. The Employment Appeal Tribunal looks set to clarify the status of those employees in a similar position during 2015.
Holiday pay and commission
Lock v British Gas: Following a ruling from the EU Court of Justice that commission should be included when calculating holiday pay, this case is due to return to the Employment Tribunal. Two hearings are currently listed, in February and March, which will address outstanding issues such as the appropriate reference period for calculating holiday pay.
Travel time as working time
Privados del sindicato Comisiones Obreras v Tyco Integrated Security: The EU Court of Justice is to decide whether travel time counts as working time where a worker does not have a fixed place of work but is required to travel at the beginning of the day from home to the premises of one of his customers and at the end of the day from the premises of another customer back to his home.
Poclava v Toledano: This Spanish referral is pending before the EU Court of Justice. It questions the lawfulness under EU law of excluding certain employees from the right to protection against unjustified dismissal. Depending on the outcome, it might impact the British two year qualifying condition for unfair dismissal protection.
Changing terms and conditions
Norman v National Audit Office: The NAO's appointment letters say that employees’ particulars of conditions of service are ‘..subject to amendment: any significant changes affecting staff in general will be notified by management circulars ... while changes affecting your particular terms will be notified separately to you’. Does this mean the employer can unilaterally vary terms of employment? A Tribunal said it does. The Employment Appeal Tribunal heard an appeal last month. We have seen a report suggesting that the appeal succeeded and a transcript of the judgment is awaited.
Balpa v Jet2.com: In 2011, BALPA was successful in securing collective bargaining for a group of workers at Jet2.com concerning their pay, hours and holidays under the statutory recognition regime. It has been reported that BALPA is now challenging in the High Court the scope of that collective bargaining, and therefore their negotiating rights, which may have wider practical significance for other employers who have agreed collective bargaining also on ‘pay, hours and holidays’.
Collective redundancy consultation
USDAW v Ethel Austin Ltd (in administration) & Ors: The Advocate General is due to give his Opinion in this EU referral on 5 February. Judgment is expected later this year - it will assist the Court of Appeal to decide whether the Employment Appeals Tribunal was right to disapply British law with the result that the 20 employee trigger for collective redundancy consultation applies per employer, not per establishment.
Severance payments and age discrimination
Landin v ENCO A/S – VVS: Can an employer adopt a redundancy payment scheme that provides for reduced payments for employees who have reached pensionable age? A ruling in this case from the EU Court of Justice should go some way towards answering this question.
Inappropriate conduct and religion or belief discrimination
Henderson v General Municipal and Boilermakers Union: In this case the Employment Appeal Tribunal will consider the tricky issue of distinguishing between dismissing someone because of their philosophical beliefs (which is unlawful direct discrimination) and dismissing someone because they have manifested those beliefs inappropriately (which is not directly discriminatory).
Strike pay deductions
Hartley & ors v King Edward VI College: This case is before the Court of Appeal on 18/19 March and concerns the proper calculation of a day’s pay for the purposes of deductions following strike action (whether it should be based on 1/365th or 1/260th of salary).