Irwin Mitchell | Focus on Employment | Winter 2016 - Case Tracker

What does 2016 have in store?

Case Court
Holiday pay and commission

Lock and others v British Gas Trading Ltd and another


Whether the Working Time Regulations (WTR) 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’s so that commission and similar payments are included in holiday pay.

Case was heard on 8/9 December 2015. The decision is not yet available and is not likely to be given until March/April 2016. If the Tribunal rules in Mr Lock’s favour another date will be set down to determine how much compensation he will receive.

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? To be heard on 9 or 10 February 2016.

Collective consultation

USDAW and another v WW Realisation 1 Ltd (in liquidation), Ethel Austin Ltd and another (the “Woolworths” case)

Court of Appeal

Following the ECJ’s decision that the Collective Redundancies Directive does not require that the number of dismissals in all of an employer’s establishments be aggregated in order to determine whether the threshold for collective redundancy consultation is met, the Court of Appeal will determine whether, on the facts, each branch of Woolworths and Ethel Austin was a separate establishment.

No date has been set for this to be heard.


First Group PLC v Dough Paulley

Supreme Court

Permission to appeal has been granted against the Court of Appeal’s 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 for this to be heard.

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.

Judgment is expected in 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 2016.

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

Court of Appeal

Appeal against the EAT’s 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.

Contracts of employment

Sparks v Department for Transport

Court of Appeal

Appeal against the High Court’s decision that the Department for Transport was not entitled to unilaterally change the terms of its staff handbook, which the court found had been incorporated (in part) into its employees’ contracts of employment.

To be heard on 16 or 17 February 2016.

Atypical working

Moran and others v Ideal Cleaning Services Ltd

Court of Appeal

Appeal against the EAT’s 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.

To be heard on 2 or 3 March 2016.

British Airline Pilots' Association v 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


R (Unison) v Lord Chancellor and another

Supreme Court - permission to appeal lodged

The Court of Appeal dismissed Unison's challenge to the introduction of fees in the employment tribunals and EAT

Data protection

Dawson-Damer and others v Taylor Wessing LLP and others

Court of Appeal

It was not 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 19 or 20 July 2016.

Winter 2016 Legislation tracker - What does 2016 have in store? Case tracker - What does 2016 have in store? News in brief Focus on HR - How not to handle a disciplinary process Do you need to treat the time your workforce spend travelling to and from work as “working time”? Case law update

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