Cases on appeal

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

Kostal UK Ltd v Dunkley and others

trade unions | collective bargaining | unlawful inducements

In Kostal UK Ltd v Dunkley and others [2018] IRLR 428 EAT, the Employment Appeal Tribunal (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 is appealing the EAT decision to the Court of Appeal. The Court of Appeal is due to hear the appeal on 22 or 23 May 2019.

Bellman v Northampton Recruitment Ltd

vicarious liability | assault | Christmas party

In Bellman v Northampton Recruitment Ltd [2017] IRLR 124 HC, the High Court held that an employer was not vicariously liable for a managing director's "brutal assault" of an employee during a drinking session after the employer's Christmas party. In the Court's view, there was an insufficient connection between the position in which the director was employed and the assault to make it right for his employer to be vicariously liable.

Mr Bellman appealed to the Court of Appeal against the High Court's decision. In Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 CA, the Court of Appeal disagreed with the High Court's conclusions about the context and circumstances of the assault. The Court found that, although the party and the drinking session were not a single seamless event and attendance was voluntary, the director was "not merely a fellow reveller" as he was present as managing director of the company. The Court of Appeal held that, in all the circumstances, there is sufficient connection between the director's field of activities and the assault to render it just that the company should be vicariously liable for the managing director's actions.

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 [2018] 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 WM Morrison Supermarkets plc v Various Claimants [2018] EWCA Civ 2339 CA, the Court of Appeal upheld the High Court decision and dismissed the appeal. Applying Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC and Bellman v Northampton Recruitment Ltd [2018] EWCA Civ 2214 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.

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 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 [2018] IRLR 97 EAT). 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. The Court of Appeal heard Uber's appeal on 30 and 31 October 2018.

Williams v Trustees of Swansea University Pension and Assurance Scheme and another

disability discrimination | discrimination arising from disability | unfavourable treatment

In Swansea University Pension & Assurance Scheme (The Trustees of) and another v Williams [2015] IRLR 885 EAT, the EAT held that a disabled employee, whose working hours had been reduced to accommodate his disability, did not suffer disability discrimination when his ill-health retirement pension was based on his part-time hours. The EAT found that, in comparison with a non-disabled person, who is normally entitled to a pension at 67, an ill-health retiree is actually being treated favourably by getting a pension before he or she reaches 67.

The Court of Appeal agreed with the EAT's analysis in Williams v Trustees of Swansea University Pension and Assurance Scheme and another [2017] IRLR 882 CA. The Court of Appeal held that treatment that confers advantages on a disabled person, but would have conferred greater advantages had that person's disability arisen more suddenly, cannot amount to unfavourable treatment within s.15 of the Equality Act 2010.

Mr Williams appealed to the Supreme Court against the Court of Appeal's decision. The Supreme Court heard the appeal on 16 October 2018 and reserved its judgment.

López Ribalda and others v Spain

human rights | CCTV surveillance | privacy

In López Ribalda and others v Spain [2018] 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 is due to hear the case on 28 November 2018.

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 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 [2018] 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.

The Chief Constable of Leicestershire Police is appealing the EAT decision to the Court of Appeal. The Court of Appeal will hear the appeal in 2019.

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) [2018] 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.

Ms Tomlinson-Blake, supported by Unison, is seeking 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 [2018] 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 will set a date to hear the appeal in due course.

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 appealed to the EAT against the first-instance decision. In Capita Customer Management Ltd v Ali [2018] IRLR 586 EAT, the EAT allowed the appeal and set aside the tribunal finding of sex discrimination. In the EAT's view, the purpose of maternity leave is to assist the health of the mother, with the care of a child provided for under the Parental Leave Directive (2010/18/EC), which does not provide for paid leave. Having made these conclusions, the EAT considered that an appropriate hypothetical female comparator for Mr Ali is an employee caring for her child, and the relevant leave to be considered would be shared parental leave, not maternity leave. 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.

The Court of Appeal will hear an appeal against the EAT decision in 2019.

Tillman v Egon Zehnder Ltd

restrictive covenants | non-compete clauses | restraint of trade

In Tillman v Egon Zehnder Ltd [2017] 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 sought leave to appeal the decision to the Supreme Court and permission to appeal was granted on 19 February 2018. The Supreme Court will set a date to hear the appeal in due course.

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 [2018] IRLR 142 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.

The case now returns to the Court of Appeal. The Court is expected to hear the appeal on 20 or 21 November 2018.