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 be heard on 1 March 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.

On 10 May 2021, the Court of Appeal granted Mr Kocur permission to appeal the EAT's decision. The appeal was heard on 20 January 2022.

Pitcher v Chancellor, Masters and Scholars of the University of Oxford and another (conjoined)

age discrimination | retirement age | justification | proportionality

In Pitcher v Chancellor, Masters and Scholars of the University of Oxford and another EAT/000638?/20; Chancellor, Masters and Scholars of the University of Oxford v Ewart EAT/000128/20, the EAT heard two appeals together because they both concern Oxford University's retirement age for professors. In the two separate cases, the professors (Mr Pitcher and Mr Ewart) challenged the university's compulsory retirement age of 68, with the key issue being whether the retirement age was justified as a proportionate means of achieving a legitimate aim. The two tribunals reached different conclusions.

The EAT dismissed both appeals. In the EAT's view, each tribunal was entitled to reach the decision that it did based on the evidence before them.

Permission is being sought to appeal the EAT's decision to the Court of Appeal.

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.

The EAT granted Mr Rodgers leave to appeal the tribunal's decision. The appeal is waiting to be listed for a hearing.

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. The Court of Appeal heard the appeal on 7 December 2021.