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Cases on appeal provides news on key case law developments that are expected.
employment status | workers | self-employed
In this high-profile case, Uber drivers regarded by the company as self-employed claimed that they are in fact workers.
In the employment tribunal decision of 28 October (Aslam and others v Uber BV and others  IRLR 4 ET), the tribunal held that the Uber drivers are workers.
This means that they are entitled to receive basic worker rights such as the national minimum wage and paid annual leave.
Uber appealed to the Employment Appeal Tribunal (EAT) against the first-instance decision. The EAT heard the appeal on 27 and 28 September 2017 and delivered its decision on 10 November 2017 (Uber BV and others v Aslam and others EAT/0056/17). The EAT dismissed the appeal.
annual leave | carry over | holiday pay
The EAT in The Sash Window Workshop Ltd and another v King  IRLR 348 EAT suggested that workers should be allowed to carry over untaken holiday into the next year if they are genuinely prevented from taking annual leave for "reasons beyond their control" other than sickness absence.
The decision has been appealed and the Court of Appeal has referred this issue to the ECJ. The ECJ hearing took place on 29 March 2017.
The Advocate General's non-binding opinion in the case was given on 8 June 2017. In Advocate General's opinion in The Sash Window Workshop Ltd and another v King Case C-214/16 ECJ, the Advocate General suggested that, where an employer has not provided a worker with paid leave, the worker's right to paid leave carries over until he or she has the opportunity to exercise it.
The full binding ECJ decision will be delivered on 29 November 2017.
national minimum wage | holiday pay | on-call night workers
In Shannon v Rampersad and another t/a Clifton House Residential Home  IRLR 982 EAT, the EAT held that an on-call night worker was not entitled to the national minimum wage for all hours of the night shift because the exception in s.16(1) of the National Minimum Wage Regulations 1999 (SI 1999/584) (since consolidated into the National Minimum Wage Regulations 2015 (SI 2015/1724)) applied. The exception states that, where salaried workers are provided with suitable facilities for sleeping at or near work, only time spent when the worker is awake for the purpose of working should be counted as salaried hours.
The EAT followed The Sash Window Workshop Ltd and another v King  IRLR 348 EAT and held that Mr Shannon was not entitled to accrued holiday pay on the termination of his employment because the facts did not support the proposition that he was unable or unwilling to take leave due to reasons beyond his control.
Mr Shannon is appealing the EAT decision to the Court of Appeal. The Court of Appeal is expected to hear the appeal on 20 March 2018.
employment status | workers | self-employed
In Pimlico Plumbers Ltd and another v Smith EAT/0495/12, the EAT held that a plumber whose agreement with Pimlico Plumbers described him as self-employed was in reality a worker, entitling him to some basic employment rights such as the right to paid annual leave and the national minimum wage.
The EAT agreed with the employment tribunal's approach of looking behind the written agreement and assessing the reality of the working arrangement. In practice, the plumber was under an obligation to provide his services personally and could not send a substitute.
Pimlico Plumbers appealed against the EAT decision. The Court of Appeal judgment dismissing the appeal (Pimlico Plumbers Ltd and another v Smith  IRLR 323 CA) was published on 10 February 2017.
On 8 August 2017, Pimlico Plumbers was granted permission to take the case to the Supreme Court. The Supreme Court is expected to hear the appeal in early 2018.
collective redundancies | pregnant workers | dismissal
The Advocate General's non-binding opinion in this Spanish case was given on 14 September 2017. In Advocate General's opinion in Guisado v Bankia SA and others Case C-103/16 ECJ, the Advocate General suggested that a collective redundancy does not always qualify as an "exceptional case" permitting the dismissal of a pregnant worker.
No date has been set for delivery of the full binding ECJ decision.
equal pay | work of equal value | private sector
An equal pay claim is being brought against retailer Asda in an employment tribunal. The claimants - both male and female - are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres. Individual cases were registered in different regions by Asda staff, but their cases have been ordered to be consolidated into one case.
On 22 June 2016, the Court of Appeal declined Asda's application to have the equal pay claim against it transferred from the employment tribunal to the High Court. The Court of Appeal ruling means that the case will continue to proceed through the employment tribunal system.
In the judgment in Brierley and others v Asda Stores Ltd ET/2406372/2008 and other cases (dated 14 October 2016), the employment tribunal accepted that the claimants can compare themselves with workers in distribution centres. The Employment Appeal Tribunal (EAT) upheld the tribunal decision in Asda Stores v Brierley and others  IRLR 1058 EAT (dated 31 August 2017). The decision on comparators means that the store workers' equal pay claims can proceed.
sex discrimination | shared parental leave | enhanced pay
In Ali v Capita Customer Management Ltd ET/1800990/2016, an employment tribunal held that it was direct sex discrimination for a new father whose wife had post-natal depression to be allowed to take only two weeks' leave on full pay, when female staff were entitled to 14 weeks' enhanced maternity leave.
The tribunal held that, while Mr Ali was not less favourably treated in the first two weeks because he also got full pay, in the subsequent 12 week-period he was denied the benefit of full pay, which would have been given to a hypothetical female caring for her child. He was denied that benefit and deterred from taking the leave, and was less favourably treated because of his sex.
Capita is appealing to the EAT against the first-instance decision. The EAT is expected to hear the appeal on 20 and 21 December 2017.
sex discrimination | shared parental leave | enhanced shared parental pay
In Hextall v Chief Constable of Leicestershire Police ET/2601223/2015, an employment tribunal held that there was no direct discrimination against a man on shared parental leave who received only statutory shared parental pay, where the employer paid enhanced maternity pay. The tribunal found that a woman on shared parental leave who was the same-sex partner of a woman who had just given birth would be treated in exactly the same way.
Mr Hextall is appealing to the EAT against the first-instance decision. The EAT is expected to hear the appeal on 16 January 2018.
disability discrimination | reasonable adjustments | constructive knowledge
In Donelien v Liberata UK Ltd UKEAT/0297/14, the EAT held that, when the facts were reviewed as a whole, the steps that the employer took were sufficient to avoid having any constructive knowledge of the employee's disability. In the EAT's view, Liberata had not placed undue reliance on a flawed occupational health report. The EAT found that Ms Donelien had a number of medical complaints that had caused her to be absent from work and Liberata had had the difficulty of "disentangling" what she could not do from what she would not do.
Ms Donelien is appealing to the Court of Appeal against the EAT decision. The Court of Appeal is expected to hear the appeal on 29 November 2017.
disability discrimination | victimisation | harassment
In Peninsula Business Service Ltd v Baker  IRLR 394 EAT, the EAT held that the employee could not claim for harassment on the ground of disability where he had not proved, but merely asserted, that his medical condition satisfied the definition of disability in s.6 of the Equality Act 2010.
Mr Baker is appealing to the Court of Appeal against the EAT decision. The Court of Appeal is expected to hear the appeal on 27 March 2018.
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