Some 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 practice in 2016.

Discrimination protection for those providing services

Windle v Arada: were two “freelance” court interpreters, whilst not employed, “in employment” for the purposes of the Equality Act 2010? The EAT concluded they were but the Court of Appeal is due to consider this issue early in 2016, potentially bringing more workers within discrimination protection.

Prosecution of company directors over business closures

R (on behalf of the Insolvency Service) v Forsey: the Government has shown itself increasingly prepared to pursue criminal proceedings against company directors for failing to file the requisite redundancy notification form (HR1) on time, even where the business falls insolvent and administrators or receivers are appointed last minute. Early this year, magistrates will hear a case against former Chief Executive of failed fashion-chain USC, which reportedly closed upon just 15 minutes’ notice, in flagrant breach of statutory redundancy notification requirements. This could increase a trend for such prosecutions.

Meaning of “temporary” agency worker

Moran v Ideal Cleaning Services Limited: the Court of Appeal will be called-upon to determine whether agency workers placed on indefinite assignment (as opposed to finite or temporary assignment) fall within the employment protection afforded by the Agency Workers Regulations 2010.

Holiday pay

Fulton v Bear Scotland and Lock v British Gas: in Fulton, the EAT is being asked to reconsider how far back workers can go in claiming holiday pay and, specifically whether a gap of more than three months in underpayments means the right to claim is lost. Meanwhile, in Lock we await the EAT’s ruling on whether commission must be included in holiday pay for private sector workers. The cases may need to go to the Court of Appeal before there is any real clarity on these issues.

Whistleblowing and the meaning of “in the public interest”

Chesterton Global Limited (t/a Chestertons) v Nurmohamed: following EAT decisions which have applied a fairly broad interpretation of “public interest” for the purposes of the Public Interest Disclosure Act 1998, the Court of Appeal will consider whether disclosures made in the interest of 100 or so senior managers attract whistleblowing protection.

HR’s role in disciplinary proceedings

Ramphal v Department for Transport: last year, the EAT ruled that an Investigating Officer is entitled to call for advice from HR in disciplinary proceedings but such advice must be confined to questions of law and procedure and must avoid straying into areas of culpability or what is the appropriate sanction, except when addressing issues of consistency. The Court of Appeal will now consider if HR exceeded its role by influencing the decision-making process.

Onerous subject access requests

Dawson-Damer v Taylor Wessing LLP: the Court of Appeal is expected to provide further guidance upon the duty to respond to subject access requests (made in accordance with the Data Protection Act 1998) and the circumstances in which such requests may be deemed unreasonable or too onerous.

Employment tribunal fees

Unison v Lord Chancellor: the union has so far failed to persuade the UK courts that the fee system in the employment tribunals is unlawful but a further appeal of the judicial review proceedings is expected to be heard by the Supreme Court this year.

Employment status once more in the spotlight

Pimlico Plumbers Limited v Smith: the legal status of purportedly self-employed workers will once more be under scrutiny by the Court of Appeal in this case concerning whether plumbers, who provided services personally, were in fact “workers” for employment law purposes and the relevance of various factors in making that assessment. In addition, with the rise in use of technology to assign work, news is expected in 2016 with regard to tribunal proceedings brought by drivers of the firm Uber, alleging worker status and entitlement to the national minimum wage.

Triggering the duty to consult over redundancies

USA v Nolan: the Court of Appeal will decide whether the obligation to consult collectively arises when the employer is proposing, but has not yet made, a strategic decision that will foreseeably lead to collective redundancies or only when that strategic decision has been made and the employer is then proposing consequential redundancies. Answering this question involves an interpretation of EU case law and the Court has already said the relevant case law is unclear on this point. As such, employers will need to exercise caution when relying on the outcome of this case.

Indirect discrimination and reason for disadvantage

Essop v Home Office (UK Border Agency): in the context of indirect discrimination, the Supreme Court will consider whether an individual must demonstrate not only that they, and a group sharing a protected characteristic, are disadvantaged, but also why they suffer that disadvantage.