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 heard the appeal on 12 and 13 February 2020.

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.

On 23 October 2019, the Supreme Court granted Harpur Trust leave to appeal the Court of Appeal's decision.

Heskett v Secretary of State for Justice

age discrimination | indirect discrimination | justification

In Heskett v Secretary of State for Justice EAT/0149/18, the Employment Appeal Tribunal (EAT) upheld the tribunal decision that absence of means, not "costs alone", justified a discriminatory pay policy.

The Court of Appeal granted Mr Heskett leave to appeal the EAT's decision. The Court of Appeal was due to hear the appeal on 6 or 7 May 2020.

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 union (Unite the Union - on behalf of its members) has confirmed that permission has been granted to appeal the Court of Appeal's decision to the Supreme Court.

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.

Morrisons appealed to the Supreme Court. On 1 April 2020, the Supreme Court handed down its decision in WM Morrison Supermarkets plc v Various claimants [2020] IRLR 472 SC. Allowing the appeal, the Supreme Court held that the employee was not engaged in furthering his employer's business but was pursuing a personal vendetta. Such wrongful conduct was not sufficiently closely connected with acts for which he was authorised to do that it could be fairly regarded as done by him while acting in the ordinary course of his employment. Consequently, the Supreme Court concluded that Morrisons was not vicariously liable for the employee's conduct.

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 2016 (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. 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 appealed to the Court of Appeal against the EAT decision. In Uber BV and others v Aslam and others [2019] IRLR 257 CA the Court of Appeal dismissed the appeal and confirmed that Uber drivers are workers.

The Court of Appeal gave Uber permission to appeal its decision to the Supreme Court. The case is due to be heard on 21 and 22 July 2020.

Asda Stores Ltd v Brierley and others

equal pay | comparator | common terms

In Asda Stores Ltd v Brierley and others [2019] IRLR 335 CA, a case that involves over 37,000 claimants and is the largest equal pay case of its kind in the private sector, the Court of Appeal held that workers in Asda supermarkets (who are mainly female) are entitled to compare their pay with the pay of depot workers (who are mainly male) because common terms of employment apply.

The Supreme Court is due to hear Asda's appeal against the Court of Appeal decision on 13 and 14 July 2020.

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.

On 12 March 2020, the Supreme Court granted East of England Ambulance Service NHS Trust leave to appeal the Court of Appeal's decision.

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.

On 23 March 2020, the Supreme Court granted the Northern Ireland Police Service leave to appeal the Northern Ireland Court of Appeal's decision. The Supreme Court decision will be binding on all UK employers.

Dewhurst and others v Revisecatch Ltd t/a Ecourier and another

transfer of undertakings | employment status | workers

In Dewhurst and others v Revisecatch Ltd t/a Ecourier and another ET/2201909/2018, ET/2201910/2018 & ET/2201911/2018, an employment tribunal held that TUPE protection extends beyond employees to cover workers. The tribunal found that the definition of "employee" in the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) is sufficiently wide to cover "limb b" workers.

It is expected that this first-instance decision will be appealed given that conventional wisdom is that TUPE applies to employees only.