Cases on appeal
Cases on appeal provides news on key case law developments that are expected.
Chief Constable of Norfolk v Coffey
disability discrimination | direct discrimination | perceived disability
In Chief Constable of Norfolk v Coffey  IRLR 193 EAT, the Employment Appeal Tribunal (EAT) upheld the tribunal decision that a police force's refusal to grant an officer a transfer because of its perception that her hearing problems could develop into a disability amounted to perceived direct discrimination.
The Chief Constable of Norfolk appealed the EAT's decision to the Court of Appeal. The Court of Appeal dismissed the appeal in Chief Constable of Norfolk v Coffey  IRLR 805 CA. In the Court's view, the tribunal's finding that the constabulary believed that the officer's hearing loss might prevent her from performing front-line duties in the future could "only mean that [it] believed that the condition might get worse". The Court held that the constabulary had perceived that the officer had a progressive condition, irrespective of whether or not it had consciously articulated that belief.
Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another t/a Clifton House Residential Home
national minimum wage | sleep-ins | care workers
In Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home)  IRLR 932 CA, the Court of Appeal heard two appeals together because they concern the same issue. The issue for the Court of Appeal was whether or not employees who sleep-in and carry out duties only if required engage in "time work" for the full duration of the night shift, or whether or not they are entitled to the national minimum wage only when they are awake and carrying out relevant duties.
The Court of Appeal held that sleep-in shifts do not count as "time work" for the purposes of the national minimum wage legislation.
The Supreme Court granted Ms Tomlinson-Blake, supported by Unison, leave to appeal the Court of Appeal's decision to the Supreme Court. The Supreme Court is expected to hear the appeal in February 2020.
Awan v ICTS UK Ltd
long-term disability benefits | implied term | breach of contract
In Awan v ICTS UK Ltd  IRLR 212 EAT, the EAT held that an implied term of the contract of employment prohibited the employer from dismissing the employee for medical capability while he was entitled to receive long-term disability benefits. In the EAT's view, "the whole purpose of permanent health insurance or other disability schemes would be defeated if an employer could end entitlements under such a scheme by dismissing employees when they become unfit for work".
ICTS UK Ltd is appealing the EAT decision to the Court of Appeal. The Court of Appeal is due to hear the appeal on 4 or 5 December 2019.
Flowers and others v East of England Ambulance Trust
annual leave | holiday pay | voluntary overtime
In Flowers and others v East of England Ambulance Trust EAT/0235/17, the EAT held that voluntary overtime must be included in the calculation of holiday pay for ambulance workers with a pattern of voluntary overtime that is sufficiently regular and settled.
East of England Ambulance Trust appealed the EAT decision to the Court of Appeal. The Court of Appeal dismissed the appeal in East of England Ambulance Service NHS Trust v Flowers and others  IRLR 798 CA. The Court held that ambulance workers are contractually entitled to have voluntary overtime included in the calculation of their holiday pay and, under the Working Time Directive (2003/88/EC), to have it included where it is sufficiently regular and settled.
X v Y Ltd
legal advice privilege | admissibility of evidence | disability discrimination
In X v Y Ltd  IRLR 516 EAT, the EAT held that an email containing legal advice on how to disguise a discriminatory dismissal as a redundancy is not protected by legal advice privilege and is admissible as evidence in a tribunal.
Y Ltd is appealing the EAT decision. The Court of Appeal is due to hear the appeal on 2 October 2019.
Kostal UK Ltd v Dunkley and others
trade unions | collective bargaining | unlawful inducements
In Kostal UK Ltd v Dunkley and others  IRLR 428 EAT, the EAT held that an employer offered unlawful inducements when it attempted to bypass collective bargaining with a trade union by making pay offers directly to its members.
Kostal UK Ltd appealed the EAT decision to the Court of Appeal. In Kostal UK Ltd v Dunkley and others  IRLR 817 CA, the Court of Appeal allowed the appeal and set aside the tribunal decision. The Court of Appeal held that the employer had asked the workforce if it would agree a particular term on this occasion; it had not sought a permanent change in its relationship with the union.
The union (on behalf of its members) is seeking leave to appeal the Court of Appeal's decision to the Supreme Court.
Various claimants v WM Morrisons Supermarket plc
vicarious liability | data protection | disclosure of personal data | criminal conduct
In Various claimants v WM Morrisons Supermarket plc  IRLR 200 HC, the High Court held that, while Morrisons was not at fault in the way in which it processed and protected personal data, it is vicariously liable for the actions of a rogue employee who published the personal data of co-employees online.
Morrisons appealed to the Court of Appeal. In Various claimants v WM Morrison Supermarkets plc  IRLR 73 CA, the Court of Appeal upheld the High Court decision and dismissed the appeal. Applying Mohamud v WM Morrison Supermarkets plc  IRLR 362 SC and Bellman v Northampton Recruitment Ltd  IRLR 66 CA, the Court of Appeal found that the wrongful acts of the rogue employee in sending the claimants' data to third parties were within the field of activities assigned to him by Morrisons. The Court of Appeal agreed with the High Court's evaluation of the facts and held that Morrisons was vicariously liable for the torts committed against the claimants.
The Supreme Court granted Morrisons permission to appeal the Court of Appeal's decision. The Supreme Court is due to hear the appeal on 6 and 7 November 2019.
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  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 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. In Uber BV and others v Aslam and others  IRLR 97 EAT, the EAT agreed with the tribunal that Uber drivers are workers and 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. The Court of Appeal heard Uber's appeal in October 2018. On 19 December 2018, the Court of Appeal delivered its decision and dismissed the appeal in Uber BV and others v Aslam and others  IRLR 257 CA. However, the Court of Appeal has given Uber permission to appeal its decision to the Supreme Court.
López Ribalda and others v Spain
human rights | CCTV surveillance | privacy
In López Ribalda and others v Spain  IRLR 358 ECHR, the European Court of Human Rights (ECHR) held that the right to privacy of Spanish shop workers (art.8 of the European Convention on Human Rights) had been breached when a supermarket installed hidden cameras without their knowledge to monitor employee thefts.
On 28 May 2018, the Grand Chamber Panel accepted the Spanish Government's request that the case be referred to the Grand Chamber of the ECHR. The Grand Chamber heard the case on 28 November 2018 and will deliver its ruling in due course.
Ali v Capita Customer Management Ltd; Chief Constable of Leicestershire Police v Hextall
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.
Capita appealed to the EAT against the first-instance decision. In Capita Customer Management Ltd v Ali  IRLR 586 EAT, the EAT allowed the appeal and set aside the tribunal finding of sex discrimination. The EAT held that Mr Ali was not discriminated against on the grounds of sex by being entitled to shared parental leave at the pay rate appropriate for such leave.
In Hextall v Chief Constable of Leicestershire Police ET/2601223/2015, an employment tribunal held that there was no 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 appealed to the EAT against the first-instance decision. In Hextall v Chief Constable of Leicestershire Police  IRLR 605 EAT, the EAT held that the tribunal had erred in its approach to the claim for indirect discrimination. The EAT allowed the appeal and remitted the claim for a rehearing before a differently constituted employment tribunal.
Mr Ali appealed the EAT decision on direct discrimination. The Chief Constable of Leicestershire Police appealed the EAT decision on indirect discrimination. The Court of Appeal heard the two appeals together.
In Capita Customer Management Ltd v Ali; Hextall v Chief Constable of Leicestershire Police  IRLR 695 CA, the Court of Appeal dismissed Mr Ali's appeal, but allowed the appeal by the Chief Constable of Leicestershire. The Court of Appeal held that employers that enhance maternity pay do not discriminate on the grounds of sex (either directly or indirectly) against employees who are offered shared parental leave paid at lower or statutory rates.
Mr Ali and Mr Hextall have applied for leave to appeal the Court of Appeal's decision to the Supreme Court.
Royal Mail Ltd v Jhuti
whistleblowing | protected disclosure | automatic unfair dismissal
In Royal Mail Ltd v Jhuti  IRLR 251 CA, the Court of Appeal held that a claimant cannot succeed in a whistleblowing unfair dismissal claim where the decision-maker was unaware of the protected disclosure at the time of the decision to dismiss.
Ms Jhuti sought leave to appeal the decision to the Supreme Court and permission to appeal was granted on 19 March 2018. The Supreme Court heard the appeal on 12 and 13 June 2019.
Tillman v Egon Zehnder Ltd
restrictive covenants | non-compete clauses | restraint of trade
In Tillman v Egon Zehnder Ltd  IRLR 906 CA, the Court of Appeal held that a six-month non-compete clause that prevented the employee from being "concerned or interested in any business carried on in competition" after termination of employment was unenforceable as it would bar her from being a shareholder in a competing business.
Egon Zehnder appealed the decision to the Supreme Court. In Tillman v Egon Zehnder Ltd  IRLR 838 SC, the Supreme Court allowed the appeal. The Supreme Court held that a six-month non-compete clause was enforceable because the unenforceable part of the clause was capable of being severed.