Cases on appeal
Cases on appeal provides news on key case law developments that are expected.
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 heard the appeal on 12 and 13 February 2020.
Harpur Trust v Brazel
annual leave | holiday pay | term-time workers | zero hours contracts
In Harpur Trust v Brazel  IRLR 1012 CA, the Court of Appeal held that holiday pay for "part-year workers" should not be calculated on a pro rata basis, but by applying the approach set out in s.224 of the Employment Rights Act 1996 and calculating average weekly remuneration over the previous 12 weeks. The Court of Appeal acknowledged that calculating holiday pay without a pro rata reduction for part-year workers might produce perceived inequities, but the Court did not consider it to be unfair.
On 23 October 2019, the Supreme Court granted Harpur Trust leave to appeal the Court of Appeal's decision.
Heskett v Secretary of State for Justice
age discrimination | indirect discrimination | justification
In Heskett v Secretary of State for Justice EAT/0149/18, the Employment Appeal Tribunal (EAT) upheld the tribunal decision that absence of means, not "costs alone", justified a discriminatory pay policy.
The Court of Appeal granted Mr Heskett leave to appeal the EAT's decision. The Court of Appeal is due to hear the appeal on 6 or 7 May 2020.
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 (Unite the Union - on behalf of its members) has confirmed that permission has been granted 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.
Morrisons appealed to the Supreme Court. On 1 April 2020, the Supreme Court handed down its decision in WM Morrison Supermarkets plc v Various claimants  UKSC 12 SC. Allowing the appeal, the Supreme Court held that the employee was not engaged in furthering his employer's business but was pursuing a personal vendetta. Such wrongful conduct was not sufficiently closely connected with acts for which he was authorised to do that it could be fairly regarded as done by him while acting in the ordinary course of his employment. Consequently, the Supreme Court concluded that Morrisons was not vicariously liable for the employee's conduct.
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. The case is expected to be heard in July 2020.
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 Hextall's request for permission to appeal the Court of Appeal's decision to the Supreme Court has been denied.
Dewhurst and others v Revisecatch Ltd t/a Ecourier and another
transfer of undertakings | employment status | workers
In Dewhurst and others v Revisecatch Ltd t/a Ecourier and another ET/2201909/2018, ET/2201910/2018 & ET/2201911/2018, an employment tribunal held that TUPE protection extends beyond employees to cover workers. The tribunal found that the definition of "employee" in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) is sufficiently wide to cover "limb b" workers.
It is expected that this first-instance decision will be appealed given that conventional wisdom is that TUPE applies to employees only.
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 appealed the EAT decision to the Court of Appeal. The Court of Appeal was due to hear the appeal on 4 or 5 December 2019, but the case settled before the hearing.