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We have identified 5 cases which could develop employment law and change HR policies and practices over the next few months. These cover:

  • Holiday pay
  • Collective consultation
  • Whistle-blowing
  • Changing terms and conditions
  • Agency worker rights



Holiday pay and commission

Lock and others v British Gas Trading Ltd and another


The EAT will consider whether the Working Time Regulations 1998 can be read in line with the Working Time Directive and the ECJ’s decision that commission should be included when calculating holiday pay. British Gas have appealed against the judgment of Leicester Employment Tribunal that the week's pay provisions of the Employment Rights Act 1996, should be re-written for the purposes of the Working Time Regulations so that commission and similar payments are included in holiday pay.

The case will be heard on 8/9 December 2015.

Potential implications for business: If the EAT finds that our domestic legislation is compatible with EU law, the case will return to Leicester Employment Tribunal to determine what compensation should be paid by British Gas to ensure that workers like Mr Lock are not disadvantaged by taking a holiday. This is likely to be done by averaging his pay over a given reference period which it will have to determine. This may provide guidance that can be applied to other, similar cases.

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 down for this to be heard.

Potential implications for business: It will lead to less costly and time-consuming redundancy exercises as companies will only have to collectively consult (e.g. consult in accordance with minimum timescales) where 20 or more staff at one establishment are to be made redundant within a period of 90 days.


Chesterton Global Ltd 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. In this case approximately 100 other employees were potentially affected by the disclosure made by Mr Nurmohamed about lower commission payments.

To be heard between 1 October 2015 and 1 February 2016

Potential implications for business: This decision suggests that the new ‘public interest test’ does not preclude disclosures which affect individuals and arise from their own contracts of employment. The Court of Appeal may clarify this and provide guidance on how many people are necessary to constitute the ‘public’. 

Changing terms and conditions 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 (relating to absence management), which the court found had been incorporated (in part) into its employees' contracts of employment.

To float on 16 or 17 February 2016

Potential implications for business: Employers who refer in their employment contracts to terms in the staff handbook forming part of the employment contract should clarify which terms are intended to be contractual and which are not. The court may give guidance on what terms are ‘apt’ for incorporation and on the kinds of terms that are not likely to be contractual, even if they are stated to be so. 

Agency workers

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 because they could not be described as ‘temporary workers’.

To float on 2 or 3 March 2016.

Potential implications for business: This decision has created uncertainty about when a worker will be deemed to fall outside of the scope of protection. It is hoped that the Court of Appeal will provide guidance on the point at which agency workers engaged on assignments of indeterminable length, and renewed on a regular basis, become permanent.

Employment Update - September 2015