The number of employment tribunal claims has risen to its highest level since 2013/14, according to the Ministry of Justices’ quarterly statistics for the period from 1 July to 30 September 2020. The employment tribunals and courts have also experienced some serious delays due to the Covid-19 pandemic. Consequently, there are currently a large number of cases which are awaiting hearing dates.
In this article we set out a selection of cases which could have a real impact on employment law in the UK, and in relation to which we are either waiting for the Court's judgement (following the case being heard in 2020), or which are due to be heard in the next 12 months.
Cases awaiting judgement
National minimum wage sleep in shifts – Royal Mencap Society v Tomlinson Blake. The Court of Appeal had found that in this particular case care workers who were merely available for work (rather than awake for the purposes of working) during sleep-in shifts were not entitled to the national minimum wage whilst they were available. The Supreme Court heard the employee’s appeal in February 2020 and judgement is still awaited.
Equal pay - Asda v Brierley. The Court of Appeal found that female workers in Asda’s retail stores could compare themselves with men working in separate distribution depots for the purposes of equal pay claims as they were in "comparative" employment. This decision meant that the case could move to the next stage to assess whether the work of the two groups was of equal value. However, in the meantime Asda has appealed the Court of Appeal’s decision and we are now awaiting the Supreme Court’s decision on Asda’s appeal which took place in July 2020.
Employment status and gig economy – Uber BV and others v Aslam and others. The majority of the judges in the Court of Appeal decided that Uber drivers were workers for the purposes of holiday pay and national minimum wage. One of the Court of Appeal judges, Underhill LJ disagreed. The Supreme Court heard Uber’s appeal in July 2020 and judgement is still awaited. It remains to be seen whether the Supreme Court will agree with the majority of judges in the Court of Appeal (and uphold the judgement), or whether it will agree with Underhill LJ (and overturn the Court of Appeal).
Cases to be heard in the next 12 months
Holiday pay - Chief Constable of the Police Service of Northern Ireland and another v Agnew and others. Mr Agnew made a large claim for backdated holiday pay against the NI police service claiming that there had been an uninterrupted series of unlawful deductions from his wages as a result of the ongoing underpayment of his holiday pay. The Northern Ireland Court of Appeal (NI CA) ruled in Mr Agnew’s favour, going against the important Employment Appeal Tribunal (EAT) decision of Bear Scotland which, since 2016, has limited the scope for workers to make substantial retrospective claims for underpaid holiday pay across the UK (the Bear Scotland case states that any series of unlawful deductions in relation to holiday pay is broken by a 3 month period between holidays that relate to the European Working Time Directive entitlement to 20 days' holiday per year).
The NI CA ruling significantly increases the potential of holiday pay claims in Northern Ireland. If the Supreme Court follows this decision, it will apply across the UK, not just in Northern Ireland as at present.
The Supreme Court will hear Mr Agnew’s appeal on 23/24 June 2021.
Holiday pay must include regular voluntary overtime - Flowers and others v East of England Ambulance Trust. The Court of Appeal decided that holiday pay must include regular voluntary overtime. The Supreme Court will hear the employer’s appeal on 22 June 2021.
Holiday pay - Smith v Pimlico Plumbers Ltd. The Employment Tribunal decided that Mr Smith’s claim for £74,000 in holiday pay was out of time. This followed him having won his case after a 7 year dispute which culminated in the Supreme Court deciding that he was a worker, and therefore was entitled to holiday pay. The EAT will hear his case on 15/17 December 2020.