Cases on appeal

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

Harpur Trust v Brazel

annual leave | holiday pay | term-time workers | zero hours contracts

In Harpur Trust v Brazel [2019] 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.

Harpur Trust appealed the Court of Appeal's decision to the Supreme Court. The Supreme Court is due to hear the appeal on 9 November 2021.

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 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 [2019] 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 Supreme Court granted the claimants permission to appeal the Court of Appeal's decision. The Supreme Court heard the appeal on 18 and 19 May 2021.

R (on the application of the Independent Workers Union of Great Britain) v Central Arbitration Committee and Roofoods Ltd (t/a Deliveroo)

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 held that Deliveroo riders are not workers and therefore are not automatically entitled to a collective bargaining arrangement. The High Court also rejected the union's argument that denying riders union representation is a breach of art.11 (freedom of association) of the European Convention on Human Rights.

The Court of Appeal granted the union leave to appeal the High Court's decision. The Court of Appeal heard the appeal on 2 and 3 February 2021.

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 [2019] 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.

The Supreme Court granted East of England Ambulance Service NHS Trust leave to appeal the Court of Appeal's decision. The Supreme Court was due to hear the appeal on 22 June 2021. However, the case has been withdrawn from the Court's list following communications from the parties.

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 Employment Appeal Tribunal 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 Supreme Court granted the Northern Ireland Police Service leave to appeal the Northern Ireland Court of Appeal's decision. The Supreme Court was due to hear the appeal on 23 and 24 June 2021. However, the case has been withdrawn from the Court's list. It has been reported that settlement discussions are ongoing.

Commissioner of the City of London Police v Geldart

direct sex discrimination | maternity discrimination | comparators

In Commissioner of the City of London Police v Geldart EAT/0032/19, the Employment Appeal Tribunal held that a failure to pay a London allowance to a police officer on maternity leave constituted direct sex discrimination and no comparator was required.

The EAT held that s.18 of the Equality Act 2010, which prohibits pregnancy and maternity discrimination, "is not an exclusive statement of the circumstances in which a claimant can complain of discrimination by reason of pregnancy or maternity". The EAT held that the principle established in Webb v EMO Air Cargo (UK) Ltd (No.2) [1995] IRLR 645 HL meant that s.13 of the Equality Act 2010, which prohibits direct sex discrimination, did not require Mrs Geldart to prove that a man would have been treated differently.

The Commissioner appealed the EAT decision to the Court of Appeal. In Commissioner of the City of London Police v Geldart [2021] EWCA Civ 611 CA, the Court of Appeal allowed the appeal and held that there was no direct sex discrimination because the employer had genuinely misunderstood the Police Regulations 2003 (SI 2003/527) in treating the London allowance as pay. The Court found that the non-payment of the allowance was because of Mrs Geldart's absence and not because of her sex.