Cases on appeal

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

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 [2017] 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 is appealing to the Employment Appeal Tribunal (EAT) against the first-instance decision. The EAT will hear the appeal on 27 and 28 September 2017.

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.

These cases were heard in the Supreme Court on 14 and 15 November 2016 and the judgments in Essop and others v Home Office (UK Border Agency) [2017] SC 27 SC and Naeem v Secretary of State for Justice [2017] SC 27 SC were published on 5 April 2017.

The Supreme Court held that there is nothing in the Equality Act 2010 that requires claimants in indirect discrimination claims to explain why the PCP puts, or would put, the affected group at a particular disadvantage.

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 ECJ.

The ECJ hearing took place on 29 March 2017. The Advocate General's non-binding opinion in the case is expected on 8 June 2017. No date has been set for delivery of the full binding ECJ decision.

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.

The Court of Appeal hearing concluded on 1 February 2017. The Court of Appeal dismissed the police officers' appeal in Harrod and others v Chief Constable of West Midlands Police and others [2017] EWCA Civ 191 CA (judgment dated 24 March 2017).

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

religious discrimination | Islamic dress | direct discrimination

The European Court of Justice (ECJ) delivered two important religious discrimination judgments on 14 March 2017. Both cases considered what employers should do if a third party objects to an employee wearing religious dress while working on a third party's premises.

In the Belgian case Achbita and another v G4S Secure Solutions NV Case C-157/15 ECJ, the ECJ held that a ban on religious dress that prevents a Muslim woman from wearing an Islamic headscarf when in contact with clients cannot be directly discriminatory, but is potentially indirectly discriminatory.

In the French case Bougnaoui and another v Micropole Univers Case C-188/15 ECJ, the ECJ held that a direct religious discrimination claim in which an employee who wears an Islamic headscarf is dismissed to appease a customer cannot be defended on the basis of a "genuine and determining occupational requirement".

The cases now return to the domestic courts in Belgium and France to apply the ECJ guidance.

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.

The Supreme Court heard the appeal against the Court of Appeal ruling on 8 and 9 March 2017.

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.

British Gas sought to appeal against the Court of Appeal decision. However, it was announced on 28 February 2017 that permission was refused for British Gas to appeal to the Supreme Court against the Court of Appeal decision.

Pimlico Plumbers Ltd and another v Smith

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 [2017] IRLR 323 CA) was published on 10 February 2017.

Pereira de Souza v Vinci Construction UK Ltd

discrimination | injury to feelings | uplift

In Simmons v Castle [2012] EWCA Civ 1039 CA, the Court of Appeal held that, from 1 April 2013, the levels of general damages courts are awarding in civil cases should be uplifted by 10%.

There has been confusion as to whether or not employment tribunals should apply the 10% uplift to awards for injury to feelings, with contradictory EAT decisions on this point.

One of these decisions, Pereira de Souza v Vinci Construction UK Ltd [2015] IRLR 536 EAT, has been appealed to the Court of Appeal for a definitive answer that will be binding on employment tribunals and the EAT. The case will be heard on 23 May 2017.

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.

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.

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 is expected to hear the appeal in this important whistleblowing case on 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.

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.

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.

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.