What are the topics of most interest in 2017? Inevitably, there is some cross-over with legislative developments – most notably regarding the gig economy and new ways of working – but here we present some broad themes likely to be developed by the courts in the coming year.
Pimlico Plumbers v Smith (Court of Appeal)
Aslam and others v Uber BV and others (EAT)
Various employment tribunal claims
Last Autumn, the London Central Employment Tribunal held that Uber was a taxi company, not a technology platform as it claimed, and found that its drivers had legal rights including the right to paid holiday and the minimum wage (and we wrote about the implications of the decision here). Shortly afterwards, Uber announced that they were to appeal to the Employment Appeal Tribunal and that appeal is expected this year.
Earlier this month, a different employment judge at the same employment tribunal found that a cycle courier was a worker for CitySprint, and three more cases being brought by couriers (against Excel, Addison Lee and eCourier) will be heard by the same employment judge this year. Other companies including Deliveroo and Hermes (the delivery company, not the luxury goods maker) are also facing action from individuals providing services to them, claiming that they too are workers.
While employment tribunals’ decisions do not bind other tribunals, those of higher courts do. This month, the Court of Appeal heard another case (involving nominally self-employed individuals who work for Pimlico Plumbers) and the result of that case is likely to affect the outcome of other claims.
Brierley and others v Asda Stores Ltd (employment tribunal)
In what has been described as the largest ever equal pay claim against a private-sector employer, more than 9,500 Asda shop floor workers (who are predominantly female) are seeking to compare their jobs with those of (predominantly male) colleagues in Asda’s distribution centres. In October 2016, the Manchester tribunal agreed that the shop floor staff could compare themselves to distribution workers and now the tribunal must determine whether there is a pay difference and, if so, whether the difference is due to genuine material factors or not. If successful, it has been estimated that Asda could be facing claims for compensation dating back to 2002 and totalling £100m.
As well as other claims stayed pending the decision, Sainsbury is also facing a claim from around 400 workers on similar grounds. You can read more about the case and how it could affect other claims here.
Chesterton Global (t/a Chestertons) v Nurmohamed (Court of Appeal))
Since June 2013, a whistleblower is only protected if he or she reasonably believes that the disclosure made is “in the public interest”. This change was intended to prevent cases such as that of Parkins v Sodexho (2002), where Mr Parkins was found to have made a protected disclosure when he complained of breaches of his own employment contract.
In Chesterton, a manager at a large firm of estate agents raised concerns about the operation of a commission scheme which affected around 100 other employees. The EAT decided that this was “in the public interest”, a decision followed in Underwood v Wincanton (2015) – a case which affected only four employees. The Court of Appeal is expected to decide in June whether or not the EAT’s liberal interpretation in Chesterton of the meaning of this phrase is correct.
Employment tribunal fees
R (on the application of Unison) v Lord Chancellor and another (Supreme Court)
Since July 2013, it costs an individual £250 to bring many types of employment claim (including unfair dismissal and discrimination) with a further £950 if it goes to a hearing. It is also clear from government statistics that the number of claims brought has dropped substantially since the introduction of fees.
The trade union Unison made an unsuccessful challenge to the new fees structure. This was also rejected by the Court of Appeal in August 2015, which said that Unison’s arguments (that the fee prevented rights derived from EU law, such as discrimination, being effectively enforced, and that the fees for complex cases such as discrimination indirectly discriminated against those with protected characteristics more likely to pursue a discrimination claim) and that there was insufficient evidence before the Court of any individual claimant’s inability to afford the fees. The judgment did however add that the decline in claims since the introduction of fees was “sufficiently startling to merit a very full and careful analysis of its causes; and if there are good grounds for concluding that part of it is accounted for by claimants being realistically unable to afford to bring proceedings, the level of fees and/or the remission criteria will need to be revisited”. The Ministry of Justice launched a review of the effect of fees in June 2015 (a year later than originally promised) but no report has been published.
The Supreme Court was due to hear Unison’s appeal in December 2016 but this was postponed to make way for Miller v Secretary of State for Exiting the EU (the “Article 50 case”). Instead, the Supreme Court will hear the appeal on 27 and 28 March 2017.
British Gas Trading Ltd v Lock and another (Supreme Court)
Sash Window Workshop Ltd v King (ECJ)
No date has yet been set for the Supreme Court hearing in Lock, although British Gas have appealed October 2016’s Court of Appeal judgment. This confirms, together with other cases, that the Working Time Regulations 1998 can and should be interpreted to include commission (and other regular payments such as acting-up payments, compulsory overtime and shift allowances) in the calculation of holiday pay. Although not yet considered by a higher court, tribunals have found that voluntary overtime should also be included.
Mr Lock’s case is one of 60 against British Gas in the East Midlands region, and 918 in the UK, to say nothing of “many thousands” (in the EAT’s words) of similar claims against other respondents, all of which are stayed at present.
British Gas is expected to appeal to the Supreme Court, given that it has 1,000 similar claims from its workers waiting in the wings. The Court of Appeal declined to answer what was the appropriate reference period for calculating the commission aspect of holiday pay and it is hoped that the Supreme Court will address this to clarify the law for both employers and workers.
In addition, the Court of Appeal referred questions to the European Court of Justice (ECJ) in April last year in Sash Window Workshop Ltd, a case which asked whether workers are entitled to carry forward, from one year to the next, holiday that they have been unable to take for reasons beyond their control.
Bougnaoui and another v Micropole Univers (ECJ)
Achbita and another v G4S Secure Solutions NV (ECJ)
Last year, the ECJ heard two religious discrimination cases, both concerning female Muslim employees who had been told not to wear headscarves. Before the judges make a decision, it is usual practice in the ECJ that an Advocate General considers the case and writes an Opinion (which may or may not be followed). In Bougnaoui, the Advocate General considered that an employer cannot have a blanket ban on religious dress simply because of a desire for neutrality or because a client or customer objects; in Achbita, another Advocate General suggested that the aim of religious and political neutrality could be sufficient to prevent a Muslim employee from covering her head.
The two ECJ judgments, expected to be delivered in 2017, will decide which approach is correct.
Essop and others v Home Office (UK Border Agency (Supreme Court)
Naeem v Secretary of State for Justice (Supreme Court)
These two indirect race discrimination claims were heard together in the Supreme Court in November 2016 and judgment is awaited.
In Essop, the Court of Appeal held that it is necessary in indirect discrimination claims for the claimant to show why the provision, criterion or practice has disadvantaged both a group with a protected characteristic, and the individual claimant. In Naeem, the Court of Appeal held that the existence of a non-discriminatory reason for Muslim prison chaplains being paid less than their Christian counterparts (length of service – since the Prison Service only started to employ Muslim chaplains in 2002) defeated an indirect discrimination claim.
While the arguments are technical, the outcome is important. Employment lawyers hope that the judgments will set out clearly how tribunals should be approaching indirect discrimination claims and what tests must be met for claims to succeed.
R (Boots Management Services Ltd) v Central Arbitration Committee and others (Court of Appeal)
British Airline Pilots’ Association v Jet2.com Ltd (Court of Appeal)
In our so-called “Winter of Discontent”, with a number of unions calling strikes and others calling for recognition by employers unused to this form of industrial relations, unions are an area of topical interest. The Court of Appeal is to give judgments in two interesting cases. In Boots, concerning a non-independent, so-called “sweetheart” union, it considers the statutory union recognition scheme and in Jet2.com, the question is what an employer forced to collectively bargain with a union must negotiate, and when it is permissible to go to the employees directly with proposals before beginning the process.
R v Forsey (Chesterfield Magistrates Court)
Finally, 2016 has continued to be a bumpy year for SportsDirect’s employer brand. Next month, the criminal prosecution of a former director will return to Chesterfield Magistrates Court, where he is accused of failing to file Form HR1 (official notification of the intent to make more than 20 redundancies) in time when the company’s subsidiary, USC, went into administration.