Cases on appeal

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

Accattatis v Fortuna Group (London) Ltd

COVID-19 | automatic unfair dismissal | health and safety

In Accattatis v Fortuna Group (London) Ltd ET/3307587/20, the employment tribunal held that an employee was fairly dismissed after refusing to attend work and giving his line manager an ultimatum that he should either be furloughed or allowed to work from home. 

Mr Accattatis is appealing the tribunal decision. The Employment Appeal Tribunal (EAT) is due to hear the appeal on 20 December 2023.

Charalambous v National Bank of Greece

unfair dismissal | disciplinary hearing | decision-maker | appeal

In Charalambous v National Bank of Greece [2023] EAT 75, the EAT upheld the tribunal decision that the employee's dismissal was fair even though the manager who made the decision to dismiss had not attended the disciplinary hearings.

Ms Charalambous is appealing the EAT decision. The Court of Appeal is due to hear the appeal by 14 October 2024.

Chief Constable of the Police Service of Northern Ireland and another v Agnew and others

annual leave | holiday pay | overtime | series of deductions

In Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2019] IRLR 782 NICA, the Northern Ireland Court of Appeal rejected the EAT ruling 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 and refused to limit claims for overtime non-payments.

The Northern Ireland Police Service appealed the Northern Ireland Court of Appeal's decision. The Supreme Court was due to hear the appeal in 2021 but the case was removed from the list because of settlement discussions. However, the parties did not reach a settlement and the Supreme Court heard the appeal in December 2022. The Supreme Court delivered its judgment on 4 October 2023 and dismissed the appeal in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2023] UKSC 33.

Higgs v Farmor's School

religious discrimination | philosophical beliefs | social media

In Higgs v Farmor's School ET/1401264/19, an employment tribunal held that a Christian school worker's belief opposing gender fluidity did amount to a philosophical belief under the Equality Act 2010. However, the tribunal dismissed her discrimination claim as it found that the school's disciplinary proceedings against her were not motivated by her beliefs but by the school's concern that, by reason of the content in her Facebook posts, she would be perceived as holding unacceptable views in relation to gay and transgender people.

Mrs Higgs appealed the tribunal's decision. The EAT allowed the appeal in Higgs v Farmor's School and another [2023] EAT 89. The EAT held that the tribunal had erred in its approach as it had failed to consider if the school's actions were because of, or related to, the manifestation of the school worker's beliefs, or were in fact due to a justified objection to the manner of that manifestation. The EAT remitted the case back to the tribunal for a rehearing of that issue. 

The school is seeking leave to appeal the EAT decision to the Court of Appeal.

Kocur and another v Angard Staffing Solutions Ltd and another

agency workers | internal vacancies | equality of treatment

In Kocur and another v Angard Staffing Solutions Ltd and another (No.3) [2021] IRLR 212 EAT, the EAT made a number of determinations about agency worker rights, including that agency workers are not entitled to apply for, or to be considered, for vacancies on the same terms as directly recruited employees.

Mr Kocur appealed the EAT's decision. On 17 February 2022, the Court of Appeal delivered its decision and dismissed the appeal in Kocur v Angard Staffing Solutions Ltd [2022] EWCA Civ 189 CA.

Mr Kocur is appealing the Court of Appeal's decision to the Supreme Court. The Supreme Court is due to hear the appeal on 7 December 2023.

Mercer v Alternative Future Group Ltd and others

trade union activities | industrial action | detriment | human rights

In Mercer v Alternative Future Group Ltd and others EAT/0196/20, the EAT held that s.146 of the Trade Union and Labour Relations (Consolidation) Act 1992 breaches art.11 (freedom of assembly and association) of the European Convention on Human Rights as it does not protect against detriment for participating in industrial action. However, the EAT found that it does not go against the "grain of the legislation" to read s.146 as encompassing that protection.

The Secretary of State for Business, Energy and Industrial Strategy intervened in the proceedings and appealed the EAT's decision. On 24 March 2022, the Court of Appeal published its judgment in Mercer v Alternative Future Group Ltd and another [2022] EWCA Civ 379. Allowing the appeal, the Court of Appeal held that s.146 cannot be read as providing protection against detriment for participation in industrial action.

Ms Mercer, supported by Unison, is appealing the Court of Appeal's decision. The Supreme Court is due to hear the appeal on 12 and 13 December 2023.

Independent Workers Union of Great Britain v Central Arbitration Committee and another

employment status | collective bargaining | human rights

In R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee and Roofoods Ltd (t/a Deliveroo) [2019] IRLR 249 HC, the High Court dismissed the union's claim for judicial review of the CAC's decision not to accept its application to be recognised by Deliveroo for collective bargaining. The Court held that Deliveroo riders are not workers and therefore are not automatically entitled to a collective bargaining arrangement.

The Court of Appeal agreed with the High Court in The Independent Workers Union of Great Britain v Central Arbitration Committee and another [2021] EWCA Civ 952.

The union appealed the Court of Appeal's decision. On 21 November 2023, the Supreme Court unanimously dismissed the appeal in Independent Workers Union of Great Britain v Central Arbitration Committee and another [2023] UKSC 43. 

USDAW and others v Tesco Stores Ltd

implied term | injunction | firing and rehiring

In USDAW and others v Tesco Stores Ltd [2022] EWHC 201 (QB), the High Court implied a term into the employment contract that prevented Tesco from exercising its right to terminate the contract on notice for the purpose of removing or diminishing the right of employees to enhanced "retained" pay. The High Court granted an injunction stopping Tesco from firing and rehiring employees with this contractual pay protection.

Tesco appealed the High Court's decision. On 15 July 2022, the Court of Appeal delivered its judgment in USDAW and others v Tesco Stores Ltd [2022] EWCA Civ 978. Allowing the appeal, the Court overturned the injunction as it could not accept that it had been the mutual intention of the parties to limit the circumstances in which Tesco could bring the contracts to an end.

USDAW is appealing the Court of Appeal's decision. The Supreme Court is due to hear the appeal on 24 and 25 January 2024.