Irwin Mitchell | Employment Law Update | Case appeals

There are a number of significant cases subject to appeal which will affect employment law.

Case

Court

Holiday pay and commission

Lock and others v British Gas Trading Ltd and another

Court of Appeal

Whether the Working Time Regulations can be read in line with the Directive. In particular, whether the week's pay provisions of the Employment Rights Act 1996 should be re-written for the purposes of the WTR so that commission and similar payments are included in holiday pay. The outcome of the case may affect overtime payments.

Appeal to EAT dismissed. British Gas has been given permission to appeal to the Court of Appeal.

Hearing date 11/12 July 2016.

Fulton and Baxter V Bear Scotland

EAT

The claimant sought permission to appeal against the Employment Tribunals decision limiting the amount of holiday pay they can receive following the EAT decision in Hertel and Fulton and Bear Scotland which introduced restrictions on the ability to be able to include historical deductions in respect of claims brought as a series of unlawful deductions.

Judgment has been reserved.

The Sash Window Workshop Ltd and another v King

Court of Appeal

Are workers entitled to carry holiday over to the next year where they are unable to take their holiday for reasons beyond their control, as an exception to the usual rule that holiday entitlement expires at the end of a leave year?

Awaiting decision.

Shannon v Rampersand and another

Court of Appeal

In Shannon, the EAT held that the approach in Sash Window was correct. However, the Court of Appeal will determine whether this applies where a worker could have requested paid leave, but chose not to do so. Can this be described as beyond their control?

Hearing 1 November 2016.

Sobczyszyn v Podstawowa C-178/15

ECJ

Is an employee entitled to be paid annual leave of at least 4 weeks in a year in which they may have taken sick leave?

Awaiting hearing date.

Collective consultation

USA v Nolan

Court of Appeal

Section 188 of TULRCA applied to redundancies at a US military base in the UK. The Supreme Court remitted the case back to the Court of Appeal to determine whether the obligation to consult collectively arises when an employer is proposing to make a strategic business or operational decision that will foreseeably lead to collective redundancies, or whether that obligation only arises once the employer has made the strategic decision and is proposing redundancies.

Awaiting a hearing date.

Discrimination

Daouidi v Bootes Plus SL C-395/15

ECJ

Discrimination. Is dismissal because of temporary incapacity caused by an accident at work an act of direct disability discrimination?

Awaiting a hearing date.

First Group PLC v Dough Paulley

Supreme Court

Permission to appeal has been granted against the Court of Appeal decision that a bus operator whose policy was to merely request, but not require, passengers to move out of wheelchair spaces to make way for wheelchair users was not in breach of the Equality Act 2010.

No date has been set down for this to be heard.

Achbita v G4S Secure Solutions NV C-157/15

ECJ

Is it direct discrimination to prohibit the wearing of an Islamic headscarf where the employer has a policy prohibiting employees from wearing outward signs of political, philosophical or religious beliefs at work?

Heard on 15 March 2016. The Advocate General has provided an opinion, indicating that banning the headscarf was justified by the employers policy of neutrality.

Home Office (UK Border Agency) v Essop and others

Supreme Court

The Court of Appeal gave guidance in Essop on how a tribunal should approach the requirement in indirect discrimination claims for claimants to show not only group disadvantage caused by application of a PCP, but also that this caused their personal disadvantage.

Permission to appeal granted on 3 November 2015.

Naeem v Ministry of Justice joined on 24 March 2016.

De Souza v Vinci Construction UK Ltd

Court of Appeal

The Court of Appeal will determine whether the 10% uplift on general damages in civil claims should apply to Employment Tribunal claims in respect of awards for injury to feelings or personal injury.

Hearing 7 December 2016.

Harrod v Chief Constable of West Midlands Police and others

Court of Appeal

Appeal against the decision that the compulsory retirement of large numbers of police officers could be objectively justified and was therefore not indirectly discriminatory on age grounds.

To be heard on 31 January or 1 February 2017.

Whistle-blowing

Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed

Court of Appeal

Appeal against the EAT decision that it is not necessary to show that a disclosure was of interest to the public as a whole, as only a section of the public will be directly affected by any given disclosure and that a small group may be sufficient.

To be heard on 11 or 12 October 2016.

TUPE

BT Managed Services Ltd v Edwards and another

Court of Appeal

Appeal against the EAT finding that an employee who had been off work for six years with no prospect of returning to work was not "assigned" to an organised grouping for TUPE purposes. Irwin Mitchell acted for Mr Edwards.

To be heard on 14 June 2016.

Atypical working/status

Moran and others v Ideal Cleaning Services Ltd

Court of Appeal

Appeal against the EAT decision that the Agency Workers Regulations 2010 did not apply to a group of agency workers who were assigned to one hirer for periods ranging between 6 and 25 years.

Settled without further hearing.

Pimlico Plumbers Ltd v Smith

Court of Appeal

The EAT held that the Employment Tribunal was correct to also take into account the degree of personal financial risk taken by the plumber and the fact that both parties actions and the contractual documentation showed that they considered the plumber was self-employed.

Awaiting Judgment.

Unions

British Airline Pilots' Association v Jet2.com Ltd

Court of Appeal

Appeal against the High Court’s decision which found that the airline was not required to negotiate with a recognised trade union over pilots' rostering arrangements in circumstances where the specified method of collective bargaining had been imposed by the Central Arbitration Committee.

To be heard on 9 or 10 November 2016.

IWGB v United Kingdom

ECHR's

Does the bar on a trade union making an application for statutory recognition under Schedule A1 of TULRCA apply where there is already a recognised union (albeit one with only minority support within the workforce) contravene Article 11?

Application lodged.

Tribunals

R (Unison) v Lord Chancellor and another

Supreme Court

Appeal against the Court of Appeal's judgement relating to Unison's challenge to the introduction of fees in the employment tribunals and EAT.

To be heard on 7 and 8 December 2016.

Data protection

Dawson-Damer and others v Taylor Wessing LLP and others

Court of Appeal

Is it reasonable or proportionate for the solicitors' firm to carry out lengthy and costly searches of files dating back at least 30 years to determine whether or not information requested was protected by legal professional privilege in order to comply with subject access requests sought under the Data Protection Act 1998?

To be heard on 19 or 20 July 2016.

Discipline and performance management

Mattu v United Kingdom

ECHR's

Does the right to a fair hearing in Article 6 ECHR apply to internal disciplinary proceedings? The Court of Appeal held in Mattu that Article 6 was not engaged during disciplinary proceedings that ultimately led to the dismissal of an NHS hospital consultant for gross misconduct.

Application lodged.

Shinwari v Vue Entertainment Ltd

Court of Appeal

Appeal against EAT finding that: There is no universal rule that full disclosure is always required. Whether it is required in a particular case will depend on the nature of the disciplinary charge, the other evidence in the case and the strength of any balancing considerations that support or justify non-disclosure.

Permission to appeal hearing on 21 June 2016.

Employment Law Update - June 2016

Key Contact

Melanie Stancliffe