Cases on appeal

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

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 Northern Ireland Police Service is appealing the Northern Ireland Court of Appeal's decision. The Supreme Court was due to hear the appeal in 2021 but the case was removed from the list because of settlement discussions. However, the parties did not reach a settlement and the Supreme Court is now due to hear the appeal on 14 and 15 December 2022.

Amdocs Systems Group Ltd v Langton

permanent health insurance benefits | TUPE transfer | unlawful deductions from wages

In Amdocs Systems Group Ltd v Langton, the Employment Appeal Tribunal (EAT) upheld a tribunal decision that Amdocs was liable to pay an escalator income protection payment not covered under its own permanent health insurance policy. The EAT was satisfied that the employee had a contractual entitlement to receive the payment under the long-term sickness terms provided by the original employer before the TUPE transfer in 2015.

Amdocs is appealing the decision to the Court of Appeal. The Court is due to hear the appeal on 28 and 29 June 2022.

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 school is appealing the tribunal's decision to the EAT.

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 heard the appeal on 9 June 2022.