Cases on appeal

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

Chell v Tarmac Cement and Lime Ltd

vicarious liability | course of employment | horseplay

In Chell v Tarmac Cement and Lime Ltd [2020] EWHC 2613 HC, the High Court held that the employer was not negligent or vicariously liable when an employee's practical joke caused an injury to Mr Chell, a contractor.

Mr Chell appealed the High Court's decision to the Court of Appeal. On 12 January 2022, the Court of Appeal delivered its judgment in Chell v Tarmac Cement and Lime Ltd [2022] EWCA Civ 7 CA. Dismissing the appeal, the Court of Appeal held that there was not a sufficiently close connection between the act that caused Mr Chell's injury and the employee's work activities so as to make it fair, just and reasonable to impose vicarious liability on the employer.

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 heard the appeal on 9 November 2021.

Higgs v Farmor's School

religious discrimination | philosophical beliefs | social media

In Higgs v Farmor's School ET/1401264/19, the employment tribunal held that an employee's belief opposing gender fluidity did satisfy the final requirement in Grainger plc v Nicholson [2010] IRLR 4 EAT, namely that "it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others". Consequently, the tribunal found that Mrs Higgs's belief amounted to a philosophical belief within the meaning of the Equality Act 2010.

The Employment Appeal Tribunal (EAT) has given the school permission to appeal the tribunal's decision. The appeal is due to begin on 22 June 2022.

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 seeking permission to appeal the Court of Appeal's decision to the Supreme Court.

Mackereth v Department for Work and Pensions and another

religious or philosophical belief | transgender | chosen pronouns

In Mackereth v Department for Work and Pensions and another ET/1304602/18, a tribunal held that a Christian doctor had not been subjected to discrimination on the grounds of religion or belief when he was dismissed for refusing to address transgender patients by their chosen pronoun.

Dr Mackereth appealed the decision to the EAT. The EAT heard the appeal in March 2022 and reserved its judgment.

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, with the support of Unison, is seeking leave to appeal the Court of Appeal's decision to the Supreme Court.

Rodgers v Leeds Laser Cutting Ltd

coronavirus | automatic unfair dismissal | health and safety

In Rodgers v Leeds Laser Cutting Ltd ET/1803829/20, the employment tribunal held that Mr Rodgers was fairly dismissed after texting his line manager to say that he would not be attending work during the first lockdown because he was concerned about infecting his young children.

Mr Rodgers appealed the tribunal's decision. The EAT dismissed the appeal in Rodgers v Leeds Laser Cutting Ltd [2022] EAT 69.

Smith v Pimlico Plumbers Ltd

workers | holiday pay | holiday carry over

In Smith v Pimlico Plumbers EAT/0211/19, EAT/0003/20 & EAT/0040/20, a case concerning different issues from those raised in Pimlico Plumbers Ltd and another v Smith [2018] IRLR 872 SC, the EAT held that Mr Smith could not carry over the right to holiday pay from one leave year to the next where he had taken the holiday but the holiday was unpaid. Consequently, Mr Smith's claim for holiday pay worth £74,000 failed because it was out of time.

Mr Smith appealed the EAT decision. On 1 February 2022, the Court of Appeal delivered its judgment in Smith v Pimlico Plumbers Ltd [2022] EWCA Civ 70 CA. Allowing the appeal, the Court of Appeal held that Mr Smith was entitled to receive payment for the unpaid holiday that he had taken throughout his employment until his dismissal.

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 is appealing the High Court's decision. The Court of Appeal is due to hear the appeal on 9 June 2022.