1. Employment Status
Last autumn, a London Employment Tribunal held that Uber was a taxi company, not a technology platform as it claimed, and found that its drivers had legal rights including the right to paid holiday and the minimum wage. Uber announced that they were to appeal to the Employment Appeal Tribunal and that appeal is expected this year. This was the tribunal case that everyone talked about in 2016.
In January, a different employment judge at the same employment tribunal found that a cycle courier was a worker for CitySprint, and three more cases being brought by couriers (against Excel, Addison Lee and eCourier) will be heard by the same employment judge this year.
While employment tribunals’ decisions do not bind other tribunals, those of higher courts do. The Court of Appeal recently heard another case (involving nominally self-employed individuals who work for Pimlico Plumbers) and the result of that case is likely to affect the outcome of other claims.
2. Equal Pay
In what has been described as the largest ever equal pay claim against a private-sector employer, more than 9,500 Asda shop floor workers – who are predominantly female – are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres, which are traditionally male dominated. In October 2016, the Manchester tribunal agreed that the shop floor staff could compare themselves to distribution workers, and now the tribunal must determine whether there is a pay difference and, if so, whether the difference is due to genuine material factors or not. Other large supermarkets are also facing claims and more retailers could be at risk.
3. Whistleblowing
Perhaps the liveliest area for case law in the last few years relates to the scope of the term “in the public interest” in whistleblowing legislation. Since June 2013, whistleblowing laws have provided that a disclosure is not protected, unless the employee reasonably believes that the disclosure is being made “in the public interest”.
The EAT in Chesterton v Nurmohamed held that matters potentially affecting the operation of the commission scheme of more than 100 managers at a large firm of estate agents could be “in the public interest”. The Court of Appeal is expected to decide whether or not, the EAT’s interpretation of what that phrase means is correct.
4. Employment Tribunal Fees
The Supreme Court is expected to hear Unison’s appeal against the Court of Appeal decision in March 2017 in respect of Tribunal fees. The Court had rejected it on the basis that there was insufficient evidence of claimants’ inability to afford the fees.
5. Holiday Pay
British Gas has applied for permission to take the case brought by a Mr Lock to the Supreme Court. If allowed to proceed, the Supreme Court will finally determine whether EU law can be read across into UK domestic law to require employers to take into account commission (and other) payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998.
No date has yet been set for the Supreme Court hearing although it is possible that the case will be fast-tracked, given the serious financial implications for employers.
6. Religious discrimination
Last year, the ECJ heard two religious discrimination cases, both concerning female Muslim employees who had been told not to wear headscarves (hijabs). Before the judges make a decision, it is usual practice in the ECJ that an Advocate General considers the case and writes an Opinion (which may or may not be followed).
Perhaps the biggest employment law surprise of 2016 was the Advocate General’s opinion in Achbita, on when employers can ban religious dress, on the basis of maintaining its religious and political neutrality.
A different Advocate General considered that an employer cannot have a blanket ban on religious dress simply because of a desire for neutrality or because a client or customer objects. The two ECJ judgments, expected to be delivered in 2017, will decide which of the two Advocate General approaches is correct.
There are plenty other expected judgments this year and no doubt others that will surprise us, and keep employment law at the fore of legal change.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.
