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Cases on appeal provides news on key case law developments that are expected.
whistleblowing | protected disclosure | automatic unfair dismissal
In Royal Mail Ltd v Jhuti  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.
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 Employment Appeal Tribunal (EAT) against the first-instance decision. In Hextall v Chief Constable of Leicestershire Police EAT/0139/17, 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.
annual leave | holiday pay | overtime
In Flowers and others v East of England Ambulance Trust ET/3400310/2015, an employment tribunal held that ambulance workers' non-guaranteed overtime in respect of "shift overruns" (ie overtime caused by workers being in the middle of an emergency) should be included in the calculation of their holiday pay, but that on the facts of this case purely voluntary overtime does not have to be included.
Mr Flowers is appealing the decision to the the EAT, and the trust is cross-appealing. The EAT heard the appeal and the cross appeal on 12 April 2018 and reserved its decision.
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 and another EAT/0161/17, 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.
vicarious liability | data protection | disclosure of personal data | criminal conduct
In Various claimants v WM Morrisons Supermarket plc  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 is appealing the EAT decision. The Court of Appeal is due to hear the appeal on 9 October 2018.
restrictive covenants | non-compete clauses | restraint of trade
In Tillman v Egon Zehnder Ltd  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 sought leave to appeal the decision to the Supreme Court and permission to appeal was granted on 19 February 2018. The Supreme Court will set a date to hear the appeal in due course.
national minimum wage | holiday pay | on-call night workers
In Shannon v Rampersad and another t/a Clifton House Residential Home  IRLR 982 EAT, the EAT held that an on-call night worker was not entitled to the national minimum wage for all hours of the night shift because the exception in s.16(1) of the National Minimum Wage Regulations 1999 (SI 1999/584) (since consolidated into the National Minimum Wage Regulations 2015 (SI 2015/1724)) applied. The exception states that, where salaried workers are provided with suitable facilities for sleeping at or near work, only time spent when the worker is awake for the purpose of working should be counted as salaried hours.
The EAT followed The Sash Window Workshop Ltd and another v King  IRLR 348 EAT and held that Mr Shannon was not entitled to accrued holiday pay on the termination of his employment because the facts did not support the proposition that he was unable or unwilling to take leave due to reasons beyond his control.
Mr Shannon is appealing the EAT decision to the Court of Appeal. The Court of Appeal heard the appeal on 20 March 2018 and reserved its decision.
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  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 (Uber BV and others v Aslam and others  IRLR 97 EAT). The EAT 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 is due to hear Uber's appeal on 30 October 2018.
employment status | workers | self-employed
In Pimlico Plumbers Ltd and another v Smith EAT/0495/12, the EAT held that a plumber whose agreement with Pimlico Plumbers described him as self-employed was in reality a worker, entitling him to some basic employment rights such as the right to paid annual leave and the national minimum wage.
The EAT agreed with the employment tribunal's approach of looking behind the written agreement and assessing the reality of the working arrangement. In practice, the plumber was under an obligation to provide his services personally and could not send a substitute.
Pimlico Plumbers appealed against the EAT decision. The Court of Appeal judgment dismissing the appeal (Pimlico Plumbers Ltd and another v Smith  IRLR 323 CA) was published on 10 February 2017.
On 8 August 2017, Pimlico Plumbers was granted permission to take the case to the Supreme Court. The Supreme Court heard the appeal on 20 and 21 February 2018 and reserved its decision.
disability discrimination | reasonable adjustments | constructive knowledge
In Donelien v Liberata UK Ltd UKEAT/0297/14, the EAT held that, when the facts were reviewed as a whole, the steps that the employer took were sufficient to avoid having any constructive knowledge of the employee's disability. In the EAT's view, Liberata had not placed undue reliance on a flawed occupational health report. The EAT found that Ms Donelien had a number of medical complaints that had caused her to be absent from work and Liberata had had the difficulty of "disentangling" what she could not do from what she would not do.
Ms Donelien appealed to the Court of Appeal against the EAT decision. The Court of Appeal judgment dismissing the appeal (Donelien v Liberata UK Ltd  EWCA Civ 129 CA) was published on 8 February 2018.
annual leave | carry over | holiday pay
The EAT in The Sash Window Workshop Ltd and another v King  IRLR 348 EAT suggested that workers should be allowed to carry over untaken holiday into the next year if they are genuinely prevented from taking annual leave for "reasons beyond their control" other than sickness absence.
The Sash Window Workshop Ltd appealed the EAT decision to the Court of Appeal. The Court of Appeal referred the issue to the ECJ.
The ECJ delivered its decision on 30 November 2017 in The Sash Window Workshop Ltd and another v King  IRLR 142 ECJ. The ECJ held that a worker must be able to carry over unused holiday when the employer does not put that worker in a position to exercise the right to take paid annual leave. The ECJ decision casts doubt on the limitations on claims for historical non-payment of holiday pay in Bear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others  IRLR 15 EAT. The Deduction from Wages (Limitation) Regulations 2014 (SI 2014/3322), which impose a two-year limitation period on most unlawful deductions from wages claims, also now appear to contravene EU law where the case relates to holiday pay.
The case now returns to the Court of Appeal. The Court is expected to hear the appeal in November 2018.
In Bellman v Northampton Recruitment Ltd  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 is appealing to the Court of Appeal against the High Court's decision. The Court of Appeal is expected to hear the appeal in late spring 2018.
collective redundancies | pregnant workers | dismissal
The Advocate General's non-binding opinion in this Spanish case was given on 14 September 2017. In Advocate General's opinion in Guisado v Bankia SA and others Case C-103/16 ECJ, the Advocate General suggested that a collective redundancy does not always qualify as an "exceptional case" permitting the dismissal of a pregnant worker.
No date has been set for delivery of the full binding ECJ decision.
equal pay | work of equal value | private sector
An equal pay claim is being brought against retailer Asda in an employment tribunal. The claimants - both male and female - are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres. Individual cases were registered in different regions by Asda staff, but their cases have been ordered to be consolidated into one case.
On 22 June 2016, the Court of Appeal declined Asda's application to have the equal pay claim against it transferred from the employment tribunal to the High Court. The Court of Appeal ruling means that the case will continue to proceed through the employment tribunal system.
In the judgment in Brierley and others v Asda Stores Ltd ET/2406372/2008 and other cases (dated 14 October 2016), the employment tribunal accepted that the claimants can compare themselves with workers in distribution centres. The EAT upheld the tribunal decision in Asda Stores v Brierley and others  IRLR 1058 EAT (dated 31 August 2017). The decision on comparators means that the store workers' equal pay claims can proceed.
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