Looking ahead: tracking key upcoming labour law cases
- Last year the UK Supreme Court made a referral to the Court of Justice of the European Union in the case of Alemo-Herron and Others (Case C-426/11). A hearing date is still awaited so a decision is unlikely to be forthcoming until late 2012, early 2013. The issue concerns TUPE and how it applies to contractual collective bargaining arrangements following a transfer. The point in issue is of particular significance to private sector employers who have taken on public sector employees as part of a TUPE transfer. At its heart is this question: are public sector employees, covered by industry or sector wide bargaining and who transfer to the private sector, entitled to the benefits of increases in pay negotiated after they were transferred to the private sector?
- Another referral awaiting the judgement of the Court of Justice is the case of USA v Nolan (Case C?583/10). The advocate general has given his opinion and a judgement is expected this year. This keenly awaited decision concerns the point at which collective redundancy consultation arises, whether it is (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and the employer is then proposing consequential redundancies.
- In the European Court of Human Rights there are at least three UK labour-related complaints outstanding. However, given the backlog of cases in the Court, it is unlikely that they will be finalised for many months, if not years. The complaints challenge a range of UK issues, including the balloting rules, the ban on secondary action, whether the law sufficiently protects employees exercising their right to strike and the prohibition on prison officers' right to take industrial action.