As the new year begins, we look ahead to 12 significant cases due to be heard in 2017 and which are likely to develop employment law and HR policy and practice in the months to come.
1. Brexit process to be determined
R (Miller) -v- Secretary of State for Exiting the European Union: Although no immediate changes to UK employment law are envisaged as a result of Brexit, no look-ahead to 2017 would be complete without at least a reference to this dominating legal and political issue and, therefore, to this significant litigation before the Supreme Court over Parliamentary sovereignty. The outcome of this case will dictate the UK process for exiting Europe.
2. Ongoing scrutiny of employment tribunal fees
R (on the application of Unison) v Lord Chancellor: The Supreme Court will give its ruling on this legal challenge against ET fees (to be heard in March). Separately, the Government is expected to announce the outcome of its review of fees. If the legal challenge succeeds or the Gov’t decides to reduce fees significantly, employers should expect claim numbers to rise.
3. Worker status in the spotlight
Pimlico Plumbers Ltd v Smith: In January the Court of Appeal will consider the test for ‘worker’ status, which is the gateway to many employment rights. The case will look at issues such as how to determine whether the alleged employer is in fact a client or customer of a business operated by the ‘worker’ and the significance of the worker’s ability to arrange for someone else to do the work in his place.
4. The gig economy and employment status
Aslam v Uber BV: Uber are appealing a ruling that two drivers were ‘workers’, entitled to holiday pay and the National Minimum Wage. We are also expecting tribunal judgments in four similar cases brought by cycle couriers and a decision from the CAC on the IWGB union’s application for recognition by Deliveroo. Other firms who rely heavily on the ‘on demand’ freelance workforce will be watching these cases keenly for any emerging trends that could have a significant impact on their business model.
5. Holiday entitlement – when does it end?
The Sash Window Workshop Ltd v King: The CJEU has been asked to rule on the remedies available to a worker whose employer denies they are entitled to paid leave, including whether a worker in that position can carry their untaken leave entitlement forward indefinitely until the employer gives him an opportunity to exercise it or his employment ends. The case is significant for those whose status as workers is disputed, as a later finding of worker status by a tribunal could leave an employer facing claims for several years’ worth of unpaid holiday pay, unless the CJEU limits the carry-over period.
6. What “holiday pay” includes
Lock v British Gas Trading Ltd: British Gas have applied for permission to take this case to the Supreme Court. If allowed to proceed, the Supreme Court will finally determine whether EU law can be read across into UK domestic law to require employers to take into account commission (and other) payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998.
7. Assessing equal value for equal pay
Brierley v Asda Stores Ltd: Thousands of female shop floor workers have brought equal pay claims against ASDA claiming the same pay as male workers in distribution centres. A Tribunal is expected to decide this year whether the jobs are of equal value. Other large supermarkets are also facing claims and more retailers could be at risk.
8. Indirect discrimination and the reason for disadvantage
Essop v Home Office; Naeem v Secretary of State for Justice: We await the Supreme Court’s decision in these two cases, which look at the significance of the cause of group disadvantage in indirect discrimination cases. Success for the claimants could strengthen employees’ ability to bring claims of indirect discrimination in some cases, particularly where it is unclear precisely why a particular group is disadvantaged by an employer’s practices.
9. The challenge of belief v discrimination
Ashers Baking Company Ltd v Lee: The Supreme Court will consider whether the Northern Ireland Court of Appeal took the idea of associative discrimination too far, turning direct discrimination ‘because of’ a protected characteristic into discrimination ‘related to’ a protected characteristic. Although not an employment case, the ruling will apply to the workplace. The case also raises the issue of freedom of religion, something that will also be considered by the Court of Appeal in the case of Wasteney v East London NHS Foundation Trust and the CJEU in two cases: Bougnaoui and Achbita.
10. Whistleblowing and the meaning of “in the public interest”
Chesterton Global Limited v Nurmohamed: following EAT decisions which have applied a fairly broad interpretation of “public interest” for the purposes of the Public Interest Disclosure Act 1998, the Court of Appeal will consider whether disclosures made in the interest of 100 or so senior managers attract whistleblowing protection. The court will also consider the relevance of employer awareness of protected disclosures in the context of dismissal this summer in the case of Royal Mail Group Limited v Jhuti.
11. Prosecution of company directors over business closures
R (on behalf of the Insolvency Service) v Forsey: in 2016 there has been much media focus upon companies perceived to be flouting various employee rights - a trend likely to continue. However, in early 2017, magistrates are due to hear criminal proceedings against former Chief Executive of failed fashion-chain USC for failing to provide the requisite statutory redundancy notification (form HR1) on time. In this case, the company reportedly provided just 15 minutes’ notice of business-closure. The case is amongst the first such prosecutions and could potentially lead to further such actions.
12. Dealing with onerous subject access requests
Dawson-Damer v Taylor Wessing LLP: the Court of Appeal is expected to provide further guidance upon the duty to respond to subject access requests (made in accordance with the Data Protection Act 1998) and the circumstances in which such requests may be deemed unreasonable or too onerous.