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 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.

Uber sought permission to appeal the EAT decision directly to the Supreme Court (bypassing the Court of Appeal), but the Supreme Court refused the application. Uber's appeal will now be heard by the Court of Appeal next year.

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 Sash Window Workshop Ltd appealed the EAT decision to the Court of Appeal. The Court of Appeal referred the issue to the ECJ.

The ECJ delivered its decision on 30 November 2017 in The Sash Window Workshop Ltd and another v King Case C-214/16 ECJ. The ECJ held that a worker must be able to carry over unused holiday when the employer does not put that worker in a position to exercise the right to take paid annual leave. The ECJ decision casts doubt on the limitations on claims for historical non-payment of holiday pay 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. The Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322), which impose a two-year limitation period on most unlawful deductions from wages claims, also now appear to contravene EU law where the case relates to holiday pay.

Donelien v Liberata UK Ltd

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 heard the appeal on 29 November 2017 and reserved its decision.

Shannon v Rampersad and another t/a Clifton House Residential Home

national minimum wage | holiday pay | on-call night workers

In Shannon v Rampersad and another t/a Clifton House Residential Home [2015] 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 [2015] 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.

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. The Supreme Court is expected to hear the appeal in early 2018.

Guisado v Bankia SA and others

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.

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 Employment Appeal Tribunal (EAT) upheld the tribunal decision in Asda Stores v Brierley and others [2017] IRLR 1058 EAT (dated 31 August 2017). The decision on comparators means that the store workers' equal pay claims can proceed.

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 EAT against the first-instance decision. The EAT is expected to hear the appeal on 20 and 21 December 2017.

Hextall v Chief Constable of Leicestershire Police

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.

Peninsula Business Service Ltd v Baker

disability discrimination | victimisation | harassment

In Peninsula Business Service Ltd v Baker [2017] 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.