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) [2018] 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 is expected to hear the appeal in February 2020.

Awan v ICTS UK Ltd

long-term disability benefits | implied term | breach of contract

In Awan v ICTS UK Ltd [2019] IRLR 212 EAT, the Employment Appeal Tribunal (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 is appealing the EAT decision to the Court of Appeal. The Court of Appeal is due to hear the appeal on 4 or 5 December 2019.

Agoreyo v London Borough of Lambeth

breach of contract | implied term of trust and confidence | suspension

In Agoreyo v London Borough of Lambeth [2017] EWHC 2019 HC, the High Court held that a teacher was constructively dismissed when she resigned in response to a knee-jerk suspension. The Court found that the suspension had been a breach of the implied term of mutual trust between the employer and employee.

The London Borough of Lambeth appealed the High Court's decision to the Court of Appeal. On 5 March 2019, the Court of Appeal delivered its decision and allowed the appeal in London Borough of Lambeth v Agoreyo [2019] IRLR 560 CA. The Court of Appeal held that the proper test for the courts for deciding if an employee's suspension breached the implied term of trust and confidence is whether or not the employer's decision to suspend was a "reasonable and proper" response to the allegations.

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 heard the case on 15 May 2019 and will deliver its decision in due course.

X v Y Ltd

legal advice privilege | admissibility of evidence | disability discrimination

In X v Y Ltd [2019] IRLR 516 EAT, the EAT held that an email containing legal advice on how to disguise a discriminatory dismissal as a redundancy is not protected by legal advice privilege and is admissible as evidence in a tribunal.

Y Ltd is appealing the EAT decision. The Court of Appeal is due to hear the appeal on 2 October 2019.

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 is appealing the EAT decision to the Court of Appeal. The Court of Appeal is due to hear the appeal on 22 or 23 May 2019.

Bellman v Northampton Recruitment Ltd

vicarious liability | assault | Christmas party

In Bellman v Northampton Recruitment Ltd [2017] IRLR 124 HC, the High Court held that an employer was not vicariously liable for a managing director's "brutal assault" of an employee during a drinking session after the employer's Christmas party. In the Court's view, there was an insufficient connection between the position in which the director was employed and the assault to make it right for his employer to be vicariously liable.

Mr Bellman appealed to the Court of Appeal against the High Court's decision. In Bellman v Northampton Recruitment Ltd [2019] IRLR 66 CA, the Court of Appeal disagreed with the High Court's conclusions about the context and circumstances of the assault. The Court found that, although the party and the drinking session were not a single seamless event and attendance was voluntary, the director was "not merely a fellow reveller" as he was present as managing director of the company. The Court of Appeal held that, in all the circumstances, there is sufficient connection between the director's field of activities and the assault to render it just that the company should be vicariously liable for the managing director's actions.

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 [2018] 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 [2019] IRLR 73 CA, the Court of Appeal upheld the High Court decision and dismissed the appeal. Applying Mohamud v WM Morrison Supermarkets plc [2016] IRLR 362 SC and Bellman v Northampton Recruitment Ltd [2019] 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.

The Supreme Court has granted Morrisons permission to appeal the Court of Appeal's decision. The Supreme Court will set a date for the appeal hearing in due course.

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 [2017] 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 [2018] 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 [2019] IRLR 257 CA. However, the Court of Appeal has given Uber permission to appeal its decision to the Supreme Court.

López Ribalda and others v Spain

human rights | CCTV surveillance | privacy

In López Ribalda and others v Spain [2018] IRLR 358 ECHR, the European Court of Human Rights (ECHR) held that the right to privacy of Spanish shop workers (art.8 of the European Convention on Human Rights) had been breached when a supermarket installed hidden cameras without their knowledge to monitor employee thefts.

On 28 May 2018, the Grand Chamber Panel accepted the Spanish Government's request that the case be referred to the Grand Chamber of the ECHR. The Grand Chamber heard the case on 28 November 2018 and will deliver its ruling in due course.

Ali v Capita Customer Management Ltd

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.

The tribunal held that, while Mr Ali was not less favourably treated in the first two weeks because he also got full pay, in the subsequent 12 week-period he was denied the benefit of full pay, which would have been given to a hypothetical female caring for her child. He was denied that benefit and deterred from taking the leave, and was less favourably treated because of his sex.

Capita appealed to the EAT against the first-instance decision. In Capita Customer Management Ltd v Ali [2018] IRLR 586 EAT, the EAT allowed the appeal and set aside the tribunal finding of sex discrimination. In the EAT's view, the purpose of maternity leave is to assist the health of the mother, with the care of a child provided for under the Parental Leave Directive (2010/18/EC), which does not provide for paid leave. Having made these conclusions, the EAT considered that an appropriate hypothetical female comparator for Mr Ali is an employee caring for her child, and the relevant leave to be considered would be shared parental leave, not maternity leave. 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.

Mr Ali appealed the EAT decision to the Court of Appeal. The Court of Appeal heard the appeal (together with the appeal against the EAT decision in Hextall v Chief Constable of Leicestershire Police [2018] IRLR 605 EAT) on 1 and 2 May 2019 and will deliver its judgment in due course.

Hextall v Chief Constable of Leicestershire Police

sex discrimination | shared parental leave | enhanced shared parental pay

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 [2018] 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.

The Chief Constable of Leicestershire Police appealed the EAT decision to the Court of Appeal. The Court of Appeal heard the appeal (together with the appeal against the EAT decision in Capita Customer Management Ltd v Ali [2018] IRLR 586 EAT) on 1 and 2 May 2019 and will deliver its judgment in due course.

Royal Mail Ltd v Jhuti

whistleblowing | protected disclosure | automatic unfair dismissal

In Royal Mail Ltd v Jhuti [2018] IRLR 251 CA, the Court of Appeal held that a claimant cannot succeed in a whistleblowing unfair dismissal claim where the decision-maker was unaware of the protected disclosure at the time of the decision to dismiss.

Ms Jhuti sought leave to appeal the decision to the Supreme Court and permission to appeal was granted on 19 March 2018. The Supreme Court will set a date to hear the appeal in due course.

Tillman v Egon Zehnder Ltd

restrictive covenants | non-compete clauses | restraint of trade

In Tillman v Egon Zehnder Ltd [2017] IRLR 906 CA, the Court of Appeal held that a six-month non-compete clause that prevented the employee from being "concerned or interested in any business carried on in competition" after termination of employment was unenforceable as it would bar her from being a shareholder in a competing business.

Egon Zehnder is appealing the decision to the Supreme Court. The Supreme Court heard the appeal on 21 and 22 January 2019 and will deliver its judgment in due course.