Cases on appeal

 

Cases on appeal provides news on key case law developments that are expected.

Barbulescu v Romania

human rights | social media | Yahoo messages

In the Romanian case Barbulescu v Romania [2016] IRLR 235 ECHR, the European Court of Human Rights (ECHR) accepted that the employee's right to a private life had been affected when his employer accessed his Yahoo messages. However, the ECHR went on to hold that the employer's actions were justified in the circumstances and not in breach of art. 8 of the European Convention of Human Rights.

This case has now gone to the ECHR's Grand Chamber. The hearing took place on 30 November 2016. Judgment is awaited.

Walker v Innospec and others

Equality Act 2010 | civil partnerships | survivor's pension

In O'Brien v Ministry of Justice (No.2); Innospec Ltd v Walker [2015] IRLR 1005 CA, the Court of Appeal held that survivors' pensions do not have to take into account civil partners' pension benefits accrued before the introduction of civil partnerships on 5 December 2005.

On 13 July 2016, the Supreme Court granted permission to appeal against the Court of Appeal ruling. The Supreme Court hearing took place on 21 and 22 November 2016. Judgment is awaited.

Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice

indirect discrimination | adverse impact | particular disadvantage

In Essop and others v Home Office (UK Border Agency) [2015] IRLR 724 CA, the Court of Appeal held that it is necessary in indirect discrimination claims for the claimant to show why the provision, criterion or practice (PCP) has disadvantaged the group and the individual claimant.

In Naeem v Secretary of State for Justice [2016] IRLR 118 CA, the Court of Appeal held that the existence of a non-discriminatory reason for Muslim prison chaplains being paid less than their Christian counterparts defeated an indirect discrimination claim.

Essop and Naeem were heard in the Supreme Court on 14 and 15 November 2016. Judgment is awaited.

R (on the application of Unison) v Lord Chancellor and another

employment tribunals | legality of fees | judicial review

The Supreme Court has granted permission for Unison to appeal against the Court of Appeal decision rejecting the union's legal challenge to employment tribunal fees.

In R (on the application of Unison) v Lord Chancellor (No.3) [2015] IRLR 911 CA, the Court of Appeal dismissed Unison's third challenge to the tribunal fees system, although the Court of Appeal did say that the decline in claims is "sufficiently startling" to merit a review of fees to prevent individuals being priced out of bringing a claim.

The Supreme Court hearing is expected to take place on 27 and 28 March 2017.

Aslam and others v Uber BV and others

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 ET/2202550/2015), 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 may appeal to the Employment Appeal Tribunal (EAT) against the first-instance decision.

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

whistleblowing | protected disclosure | in the public interest

In Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed [2015] IRLR 614 EAT, the EAT held that allegations about accounting malpractices that affected the bonuses and commission of 100 senior managers were made in the reasonable belief that they were in the public interest.

Whistleblowing laws were changed in June 2013 to provide that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made "in the public interest". This change was made to prevent instances of workers using the legislation to make protected disclosure claims in relation to complaints about breaches of their own contracts of employment.

However, the EAT in Chesterton set a low bar for the "public interest" test, with a worker whose contract is potentially being breached able to raise concerns about the issue as long as the worker reasonably believes that it is "in the public interest".

The Court of Appeal was expected to hear the appeal in this important whistleblowing case on 11 and 12 October 2016. However, the hearing has been delayed until 8 June 2017.

Brierley and others v Asda Stores Ltd

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 decision on comparators means that the store workers' equal pay claims can proceed.

British Gas Trading Ltd v Lock and another

holiday pay | calculation | commission

On 7 October 2016, the Court of Appeal in Lock and another v British Gas Trading Ltd (No.2) [2016] IRLR 946 CA held that the EAT was correct to uphold an employment tribunal decision that the Working Time Regulations 1998 can be interpreted to require employers to include a worker's commission in the calculation of his or her holiday pay.

It is likely that British Gas will appeal to the Supreme Court against the Court of Appeal decision.

BT Managed Services Ltd v Edwards and another

TUPE transfers | assignment to organised grouping | indefinite sick leave

In BT Managed Services Ltd v Edwards and another [2015] IRLR 994 EAT, the EAT held that an employee, not working in his employer's business because of health problems, but retained as an employee to receive permanent health insurance (PHI) payments, was not "assigned" to the organised grouping of employees for the purposes of a TUPE transfer.

Although Lord Justice Longmore granted permission on 14 June 2016 for BT Managed Services' appeal to go to a full Court of Appeal hearing, the case settled on 16 August 2016.

Bougnaoui and another v Micropole Univers; Achbita and another v G4S Secure Solutions NV

religious discrimination | Islamic dress | direct discrimination

In Bougnaoui, a reference has been made from the French courts to the ECJ about third-party objections to religious dress.

In this case, an employee who wore an Islamic headscarf was told by her employer to remove it while visiting a client, after the client's staff complained about her appearance. The Muslim employee was dismissed after she refused.

Bougnaoui appears to revolve around whether or not the need to adopt a "neutral appearance" with a client can be a genuine occupational requirement of a job.

A similar ECJ reference has been made from a court in Belgium in Achbita.

The issue in that case is whether or not a prohibition on Muslim women wearing a headscarf in the workplace constitutes direct discrimination where the employer's rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs.

Bougnaoui and Achbita were both heard in the ECJ on 15 March 2016. The full judgments are pending.

The Advocate General's non-binding opinion in Achbita was published on 31 May 2016. The Advocate General's non-binding opinion in Bougnaoui was published on 13 July 2016.

The Sash Window Workshop Ltd and another v King

annual leave | carry over | holiday pay

The EAT in The Sash Window Workshop Ltd and another v King [2015] 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 European Court of Justice (ECJ).

Swansea University Pension & Assurance Scheme (The Trustees of) and another v Williams

disability discrimination | discrimination arising from disability | unfavourable treatment

The EAT in Swansea University Pension & Assurance Scheme (The Trustees of) and another v Williams [2015] IRLR 885 EAT provided the first appellate guidance on what constitutes "unfavourable" treatment for discrimination arising from disability under the Equality Act 2010.

The appeal in this case is listed to be heard by the Court of Appeal on 6 and 7 December 2016.

Patterson v Castlereagh Borough Council

holiday pay | calculation | overtime

The Northern Ireland Court of Appeal allowed the appeal against the tribunal decision in Patterson v Castlereagh Borough Council NIIT/1793/13. The Northern Ireland tribunal had held that purely voluntary overtime does not have to be included in the calculation of holiday pay. The appeal was allowed after the employer's legal representatives conceded before the Northern Ireland Court of Appeal that there is "nothing in principle" to prevent purely voluntary overtime from counting towards holiday pay.

The overtime in this case was for work that the employer was not obliged to offer and that the worker was not obliged to accept if it was offered. The EAT decision in Bear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others [2015] IRLR 15 EAT technically only dealt with overtime that the employer can insist that the worker perform. The Bear Scotland decision did not extend to consideration of purely voluntary overtime.

In its judgment of 26 June 2015, the Northern Ireland Court of Appeal held that there is no reason in principle why voluntary overtime should not be included in holiday pay, if it is normally carried out and is an "appropriately permanent feature" of the worker's remuneration.

The Court of Appeal ordered that the case be resubmitted to the tribunal to hear further evidence of Mr Patterson's overtime arrangements.

United States of America v Nolan

redundancy consultation | timing of consultation | strategic decision

In United States of America v Nolan [2016] IRLR 34 SC, the Supreme Court held that the US Government had collective redundancy consultation obligations towards civilian workers during the closure of a US army base in the UK.

The Supreme Court said that this is the case even though the Trade Union and Labour Relations (Consolidation) Act 1992 goes beyond what the Collective Redundancies Directive (98/59/EC) requires.

The case now returns to the Court of Appeal for it to consider whether or not the US Government complied with its redundancy consultation obligations under UK law.

Chief Constable of West Midlands Police and others v Harrod and others

age discrimination | retirement | justification

In Harrod and others v Chief Constable of West Midlands Police and others ET/1307406/2011, the employment tribunal held that the practice of requiring the retirement of officers under reg.A19 of the Police Pensions Regulations 1987 (SI 1987/257) is not a proportionate means of achieving a legitimate aim. The A19 rule allows police forces to require a police officer of the rank of chief superintendent or below to retire "in the general interests of efficiency". For an officer to be retired under reg.A19, he or she must have served at least 30 years and be entitled to a pension of two-thirds of his or her pensionable pay.

The police forces involved (Devon and Cornwall, Nottinghamshire, the West Midlands, North Wales and South Wales) appealed and their appeal was successful (Chief Constable of West Midlands Police and others v Harrod and others [2015] IRLR 790 EAT). On 8 July 2015, the EAT overturned the employment tribunal judgment and rejected the police officers' case.

It has been announced that the EAT decision is being appealed to the Court of Appeal. The case is listed to be heard on 31 January and 1 February 2017.

Equal pay claim against Sainsbury's

equal pay | work of equal value | private sector

Four female shopfloor workers at Sainsbury's are bringing a test equal pay claim on the basis that they are paid less than, but do work of equal value to, workers in higher-paid jobs in male-dominated distribution centres.

Lawyers at law firm Leigh Day, which is taking the legal action on behalf of the women, say that they "believe that thousands of female shopfloor staff could be eligible to make a claim". A preliminary employment tribunal hearing took place on 10 July 2015.