Cases on appeal

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

Ali v Capita Customer Management Ltd

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 Employment Appeal Tribunal (EAT) against the first-instance decision. It is expected that the EAT will hear the appeal in late 2017.

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.

On 8 August 2017, Pimlico Plumbers was granted permission to take the case to the Supreme Court.

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

employment tribunals | legality of fees | judicial review

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.

On 26 July 2017, the Supreme Court in R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 SC ruled that the requirement for claimants to pay a fee to bring an employment tribunal claim is unlawful and that the legislation that introduced employment tribunal fees must be quashed.

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. The Supreme Court judgment allowing the appeal (Walker v Innospec Ltd and others [2017] SC 47 SC) was published on 12 July 2017.

Chesterton Global Ltd (t/a Chesterton Humberts) 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 heard the appeal in this important whistleblowing case on 8 June 2017 and reserved its judgment. The Court of Appeal decision was published on 11 July.

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.

In its decision of 4 July 2017, the Court of Appeal in Pereira de Souza v Vinci Construction UK Ltd [2017] EWCA Civ 879 CA, confirmed that the 10% uplift on general damages in civil claims applies to employment tribunal compensation for injury to feelings caused by discrimination.

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 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.

No date has been set for delivery of the full binding ECJ decision.

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.

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.

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.

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.

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.