We have identified 5 cases which we think could have a big impact on employment law and HR practice over the next few months.
The cases deal with:
Employment Tribunal fees
Atypical working arrangements
The Sash Window Workshop Ltd v King
Issue: Should workers be entitled to carry holiday over to the next year where they are unable to take holiday for reasons beyond their control?
The European Court of Justice (ECJ) heard the case on 29 March 2017 and the Advocate General’s non-binding opinion is expected on 8 June 2017.
Why it is important: The current rules are that statutory holiday entitlement under the Working Time Directive (4 weeks’ leave) expires at the end of each leave year and is lost if not taken. Additional leave provided by the Working Time Regulations (WTR) (1.6 weeks’ leave) can be carried over to the next year by agreement. Currently the only exception to this is if at the end of a leave year, a worker who is off sick has been unable to take planned annual leave due to sickness absence.
If the ECJ decides that workers should be entitled to carry holiday over to the next year where they are unable to take holiday for reasons beyond their control, it is likely that the Court of Appeal will interpret the WTR accordingly.
If that is the case, it will then become a question of interpretation as to what amounts to “reasons beyond their control”, unless the ECJ provides further guidance. Employers should review how they deal with carry forward of holiday – not just in contracts and policies but also in practice, to ensure that they are in line with any changes as a result of the decision. We may see an increased number of requests to carry over holiday and employers will need to consider carefully whether carry over should be allowed or refused in light of this decision.
Employment Tribunal fees
R (Unison) v Lord Chancellor and another
Issue: Should fees be payable to pursue Employment Tribunal claims?
The case was heard by the Supreme Court on 27 and 28 March 2017. The judgment is awaited.
Why it is important: Fees were introduced in Employment Tribunals and the Employment Appeal Tribunal in 2013. Since then the number of claims has fallen by approximately 70%, leading many to the view that the fees are denying access to justice. Claims are divided into Type A and Type B claims. The issue fee for a Type A claim is £160 and the hearing fee is £230. The issue fee for a Type B claim is £250 and the hearing fee is £950. There are also fees for making certain types of application to the Tribunal, and for appealing the decision of a Tribunal.
Unison has challenged the lawfulness of the fee introduction, arguing that the fees are prohibitive and denying potential claimants access to justice. They also argued that a higher fee for Type B claims, which includes discrimination claims, is discriminatory against people with protected characteristics.
Unison has so far been unsuccessful, and its claim was rejected by both the High Court and the Court of Appeal. We now await the decision of the Supreme Court. If the appeal is successful the Government will have to decide what to do about tribunal fees – so far it has shown no willingness to reduce or abandon them.
Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed
Issue: How many people have to potentially be affected by a disclosure for it to meet the public interest test? This case involved an allegation of manipulation of accounts which could have affected the commission payments to 100 managers. The Employment Tribunal and Employment Appeal Tribunal both held that the disclosures made were in the public interest, albeit a small section of the public!
The Court of Appeal will hear this case on 8 June 2017 and is expected to give guidance on what amounts to the public interest.
Why it is important: To counter criticism that individual employees were able to bring whistleblowing claims about alleged breaches of their own terms of employment, which was not the purpose of the legislation, the Government changed the law on whistleblowing. Claimants must now show that they had a reasonable belief that their disclosure was “in the public interest”. Since this case, four lorry drivers have tried to persuade a tribunal that their complaint about overtime satisfied the public interest test and a worker at a charity annoyed about the lack of desk space available to her has sought to argue that her disclosure was in the public interest because the public would be concerned about the working conditions of charity workers. Royal Mail Group Ltd v Jhuti
Issue: Is a dismissal for making protected disclosures automatically unfair even if the decision-maker was unaware of the disclosures?
The Court of Appeal will hear this case on 20 June 2017.
Why it is important: The EAT held in this case that a dismissal was automatically unfair even though the dismissing manager herself did not know about the protected disclosures and thought the claimant was a poor performer. A decision made in ignorance of the true facts but which is manipulated by someone else in a managerial position who is in the possession of the true facts, can be attributed to the employer.
If the Court of Appeal uphold the EAT’s decision, it will be more difficult for employers to avoid findings of automatic unfair dismissal in whistleblowing cases. It is important that decision-makers and investigators liaise with senior managers and HR departments to ensure that they are aware of the full situation. Whatever the outcome, the decision will provide some much-needed clarity on dismissals involving whistleblowing.
Aslam and others v Uber and Pimlico Plumbers Ltd v Smith
Issue: Whether individuals expressly engaged as self-employed are, in fact, workers. Uber and Pimlico entered into contractual arrangements which described individuals as providing services on a self-employed basis and the individuals have challenged these arrangements, claiming that they are workers and should be entitled to workers’ rights.
In the Uber decision, the Employment Tribunal found that Uber drivers were workers. The EAT will hear an appeal on 27 and 28 September 2017.
In Pimlico, the Court of Appeal upheld the Employment Tribunal’s decision that the plumbers were workers. An application for permission to appeal to the Supreme Court is currently pending.
Why it is important: The case will have a wider impact on the so called ‘gig’ economy in which people are often classed as ‘self-employed’. If the individuals are workers, they will be entitled to basic workers’ rights such as the right to receive the national minimum wage, paid holiday and not to suffer unlawful deductions from their wages, which are not afforded to those who are self-employed. An increasing number of individuals are now challenging their employment status and claiming to be workers or employees. The decisions so far suggest that when deciding employment status, Tribunals will look at the reality of what happens in practice rather than the express contractual terms.
The question has recently attracted significant political interest. The Department for Business, Energy and Industrial Strategy is currently holding an inquiry into the range of working practices used, the Autumn Statement considered how the gig economy is impacting the government’s tax receipts and both the Labour and Conservative manifestos ahead of June’s general election state that they will act to protect workers’ rights.
Published: 2 June 2017
Employment Law Update - June 2017
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