2018 will go down as a year dominated by Brexit and the further sad demise of the UK High Street. As household names such as House of Fraser, Toys R Us, Maplin and, more recently, HMV, closed retail units up and down the country, it was employees and creditors who were wishing the year would hurry up and end. This sentiment was echoed by employers who had the immense joy of finally getting to grips with GDPR and who hurriedly attempted to adjust annual budgets to deal with the new holiday pay rules on overtime and commission.
All in all, it has indeed been another interesting year for employment law. In what is now as much of a January tradition as signing up for a non-refundable gym membership and going only once, below is my top 5 countdown of the most important employment law cases 2018 had to offer.
In reverse order:
5. Various Claimants v Morrisons
What a case we had to start off 2018. Following the release of personal data of approximately 100,000 employees by a disgruntled senior auditor, Morrisons faced a group action by around 5,000 employees who were, understandably, a tad miffed that their private data had been uploaded to a public website. The question for the courts was whether Morrisons could be liable for the actions of a member of staff who, on a frolic of his own, maliciously released the data.
The High Court found that Morrisons were not in breach of the Data Protection Act as good processes were in place and the senior auditor required the information for his role. However, Morrisons were still found to be vicariously liable for the rogue employee’s actions. On appeal, the Court of Appeal agreed with the High Court. Given the huge financial implications for Morrisons, don’t be surprised to see this one in the Supreme Court in 2019.
Our full breakdown of the case is available HERE.
4. Royal Mencap Society v Tomlinson-Blake
The ongoing saga of whether carers who sleep over during shifts are entitled to minimum wage may have finally come to an end with 2018’s Court of Appeal judgment. The case, originally brought in 2015, caused panic throughout the care industry with employers estimating a £400m+ bill should the employees be successful in their claims.
As is industry standard, carers on sleep-in shifts are paid a flat rate, usually £35 to £40 instead of an hourly minimum wage. The question for the Court of Appeal was whether the time spent sleeping was working time and should, therefore, attract minimum wage.
The Court of Appeal, perhaps with the thought of floodgate claims in the back of their head, ruled that the time spent sleeping does not attract minimum wage and, therefore, the payment of a flat rate is not incompatible with national minimum wage legislation.
We understand that the unions are involved on behalf of the Claimants in this case so, although we have yet to hear of an appeal being filed, don’t be surprised to see this case in next year’s review following a Supreme Court judgment.
Our full breakdown of the case is available HERE.
3. Ali v Capita Customer Management Ltd
There is nothing like the panic of an HR team when a judgment is released that flies in the face of internal policies. In 2017, a collective gasp was heard throughout the UK when an Employment Tribunal found that not offering enhanced shared parental pay to men, where there was an internal policy offering enhanced maternity pay to women, amounted to direct sex discrimination. We were confident the Employment Appeal Tribunal would overturn the judgment and we received confirmation in April 2018 that they had done just that.
A further appeal is likely in this case, and I wouldn’t be surprised to see it in the Court of Appeal in 2019.
Our full review of the employment tribunal case can be read HERE.
2. Awan v ICTS Limited
Mr Awan had been continually incapacitated from work for two years. During the period of incapacity he benefited from a contractual right to Permanent Health Insurance (PHI) which protected his wages. Mr Awan was later dismissed for incapacity and, as a result, was no longer entitled to the PHI benefit provided for in his employment contract.
ICTS successfully defended an unfair dismissal claim in the Employment Tribunal, however the Employment Appeal Tribunal was not so favourable in its judgment. By inserting an implied term into Mr Awan’s contract of employment, the EAT found that Mr Awan should not have been dismissed whilst in receipt of PHI.
The terms of Mr Awan’s contract were key. There was a contractual obligation on ICTS to pay the benefits under PHI, regardless of whether the insurer paid out under the policy or not. This could have been easily avoided with precise drafting of the employment contract and is certainly a warning for employers to review the terms of their contracts to ensure they don’t fall into the same trap.
And the winner is….
1. City of York Council v Grosset
Whilst this case did not receive the press attention afforded to the likes of the Uber case, for various reasons it has my accolade as the employment case of the year.
Mr Grosset was a teacher who suffered from Cystic Fibrosis. Following a deterioration in his health, he showed an 18 rated movie, Halloween, to his 15 and 16 year old pupils. Mr Grosset claimed that his mistake in showing the movie was owing to his disability which led to increased stress levels. This was rejected by the disciplinary board who dismissed him for gross misconduct.
Mr Grosset brought claims for unfavourable treatment because of his disability, failure to make reasonable adjustments and unfair dismissal. The Employment Tribunal, Employment Appeal Tribunal and Court of Appeal unanimously concluded that, despite not knowing the link between Mr Grosset’s disability and his actions, he had been treated unfavourably because of his disability.
The case is a very good reminder not to jump to conclusions, even in cases that may on the face of it seem like an obvious gross misconduct situation. The key, as always in such situations, is to seek medical evidence to rule out any mitigating circumstances.
Our immediate comments on the judgment can be read HERE.
Particular mention must also go to Uber v Aslam and Smith v Pimlico Plumbers in which the employment status of the individuals involved was upheld by the Court of Appeal and Supreme Court respectively.
And so to 2019…..
With 2018 out of the way, what can we expect to see in 2019?
As stated above, we expect to see a number of cases being appealed in 2019, notably the Morrisons and Mencap cases which will likely be heard in the latter part of the year.
Early in the new year the Court of Appeal will decide on a very interesting case regarding shareholdings in post termination restrictions. Tillman v Egon Zehnder Ltd is due to be heard on 22 and 23 January 2019.
The European Court of Human Rights will also decide whether the right to a fair trial under Article 6 applies to internal disciplinary hearings. Keep your eyes on Mattu v United Kingdom later in the year for that one.
In what I believe will the employment law story line of 2019, the judgment on Asda Stores Ltd v Brierley and others will be released in the first quarter of 2019. The claim relates to equal pay between retail employees and warehouse workers. With other high profile supermarkets facing similar claims, the liabilities could be huge for all involved.
Agoreyo v London Borough of Lambeth heads to the Court of Appeal on 29 January 2019 to decide whether a knee jerk decision to suspend an employee accused of assault is a breach of contract, entitling the employee to resign.
And finally on the case law front, I am hearing whispers that the Royal Mail may be facing some of the same problems as Uber in respect of employment status of their couriers. It is likely that a 2019 hearing will be listed which will no doubt garner media attention.
Aside from case law, the Government are set to have a busy year with a raft of new legislation being pushed through following Brexit (which at the time of writing is still going ahead).
April 2019 will see the introduction of more detailed payslips for all workers. Your payroll department should be on top of this, so do check before the deadline.
Employment Tribunal fees. Yes, I know I said this last year, but once the Government has some time on its hands following Brexit, 2019 may just see the return of Employment Tribunal fees.
Finally, the Government’s “Good Work Plan” has suggested a number of changes to employment law including the abolition of the Swedish Derogation in the agency sector and the increase of reference periods for holiday pay calculations from 12 weeks to 52 weeks. This is unlikely to occur in 2019, with a date of 2020 more likely.