In this blog I look at some of the significant cases that will affect employment law in 2016.  

Holiday pay and commission is the focus in Lock v British Gas. You will be aware that the Court of Justice of the European Union (CJEU) ruled that the Working Time Directive requires that where a worker is paid regular commission, their holiday pay must include the average commission that they would have received if they were working. The Employment Tribunal followed the CJEU's reasoning when making its decision but its judgment has since been appealed by British Gas. The appeal was heard by the Employment Appeal Tribunal in December 2015 and we can expect the judgment in the next few months, which will give more authoritative guidance on how employers should calculate holiday pay.       

Sparks and Others v Department for Transport (DfT) is concerned with unilateral variation of contracts. The issue is whether the DfT can impose a new absence management policy on employees pursuant to a power to make contractual changes provided they were not ‘detrimental’ to employees. The High Court held that if the new policy was imposed, the DfT would be in breach of contract. The DfT’s appeal is due to be heard by the Court of Appeal in February and will clarify how and when contractual changes can be made.      

The scope of agency worker protection will be examined by the Court of Appeal in Moran and Others v Ideal Cleaning Services Limited. The EAT previously held that workers are afforded protection by the Agency Worker Regulations 2010 only if they are supplied by a temporary work agency to work “temporarily” for the end user.  

It is well established that an employer indirectly discriminates against an employee if it applies a provision, criteria or practice (PCP) universally but the effect of that PCP substantially disadvantages employees with a protected characteristic under the Equality Act 2010 and the effect cannot be objectively justified. In Home Office (UK Border Agency) v Essop and Others the Court of Appeal held that a claimant who complains of indirect discrimination must establish not only that he or she was a member of a disadvantaged group, but also why the relevant PCP disadvantaged him or her as an individual. The Supreme Court will hear the appeal.        

Chesterton Global and Others v Nurmohamed is a whistleblowing case involving the director of an estate agent. He claimed that he was unfairly dismissed after making disclosures to his area manager and HR director, alleging that the company accounts had been manipulated to the detriment of 100 senior managers. The EAT agreed with the Tribunal that the disclosures were made in the reasonable belief of the Claimant that they were in the interest of the senior managers and this was a sufficient group of the public to amount to a matter in the public interest. The appeal has been listed for October 2016.