Employment law cases to look out for in 2017
Neill Thomas Wednesday, February 8, 2017
Just as there is legislative and regulatory change on the horizon for Employment Law, the courts are going to be busy hearing a number of cases that may prove to have a significant impact in a number of areas - from workers rights, discrimination and whistleblowing, all these areas of law are due to be scrutinised by the Employment Appeal Tribunal or the appeal courts in teh coming months.
"Gig" Economy cases - Uber et al
Perhaps the cases that have had the most publicity due to the fact that seem to focus on a key aspect of today's so called 'gig economy' in which companies contract with 'workers' to provide services, and so circumvent the need for an employment relationship. Perhaps because Uber, the taxi company which has tapped in to our obsession with apps to match drivers with passengers, has already faced legal challenges in the USA about its employment practices, it was an 'easy target'. However, in October 2016, the Employment Tribunal sharply criticised the UK operation of the business for its contention that it was merely a "mosaic" of thousands of small, independent businesses. Although the drivers can decide when to use the app to find business, once they do so, Uber exerts a significant amount of control over every aspect of the relationship between driver and passenger including the fare and the destination. The ET decided that this was fatal to their argument that the taxi drivers were not employees.
Uber are, not surprisingly, challenging the ruling before the EAT, and everyone with an interest in the fundamentals of the employment relationship and the distinctions between workers and employees should take note.
Defining the employment relationship has always been about looking at the practicalities, of considering the question of 'control' - and in many ways this is no different; simply that the technologies are available now which can potentially add a new layer into that exercise of consideration. However, it is to be hoped that, whichever was the EAT rules, we may get some guidance about how to assess these new look 'employment relationships'.
The question of commission as part of 'normal remuneration when calculating holiday pay
What does and doesn't count as normal remuneration for the calculation of holiday pay has been considered most recently by the Court of Appeal in the case of Lock v British Gas. Mr Lock has, up till now, succeeded in his argument that his results based commission should indeed form part of that calculation. The case is interesting to note not because it is likely to see the 'opening of the floodgates' (in fact the floodgates are already open as many thousands of holiday pay cases are on hold pending the final resolution of the points of law at issue in Lock), but more because of its restrictive nature. The Court of Appeal was very clear that the decision in favour of Mr Lock was down to the particular facts of his case.
There is a wider issue at stake in Lock - that of the extent to which the Employment Tribunal could interpret UK legislation to implement the Working Time Directive. The leading judgment in the Court of Appeal held that thiswaspermissible, but only given the facts of the case. The impact is therefore going to be less onerous for employers than might otherwise have been thought. It is this point that is likely to be teased out before the Supreme Court.
We should also look at Lock against the backdrop of Brexit and recent Government intervention in other holiday pay issues. The Government intervened on behalf of British Gas in the Lock case, and not so long ago stepped in with secondary legislation to limit historic claims for holiday pay. It may well be that holiday pay is an area which comes under scrutiny as part of the repeal bill that will allow the amendment of those laws which have come from EU legislation.
'in the public interest'
Whistleblowing has been in the spotlight in a number of cases recently, and the question of whether a disclosure under the whistleblowing provisions is 'in the public interest' (or not), in accordance with the 2013 amendments to the legislation, will be scrutinised in Chesterton v Nurmohamed.
The disclosures the employee made were that his employer, Chesterton Global Estate Agents, had fiddled the accounts to make it appear that the employee and his peers were not entitled to as much bonus/commission as they thought. He made the disclosure on behalf of himself and cited around 100 other managers working for the company as being affected. He succeeded both in the Employment Tribunal and Employment Appeal Tribunal, relying on the argument that 'the public' doesn't have to be the public in general, but a section of it. The EAT also decided that it is important to consider whether the employee has a reasonable belief that the issue is in the public interest, rather than whether, objectively, it is so. The employer is appealing and the Court of Appeal is due to hear the issue in June.
If the EAT is right, this sets a low bar for determining whether a disclosure is 'in the public interest'. It also avoids any distinction between workers in the public and private sectors (when it might otherwise be argued that the disclosure of certain practices such as the one in issue here, were not 'in the public interest' as they related to private matters).
Other cases of interest
The Supreme Court heard 2 cases relating to Indirect Discrimination under the Equality Act 2012 back in November, and we eagerly await the decisions. In Essop, the question at issue is whether a claimant in an indirect discrimination claim must show the reason why a provision, criterion or practice puts or would put (a) the claimant; and (b) persons with whom he or she shares a 'protected characteristic' at a particular disadvantage. In Naeem, the question the Supreme Court is wrestling with is whether a Claimant must show that his or her 'protected characteristic (sex, race, age etc) is thematerial causeof the indirect discrimination.
The ASDA Equal Pay claims can go ahead following the Employment Tribunal's decision on comparators that allows ASDA's retail staff to compare themselves with employees working in the distribution centre. Finally, Unison's challenge to the employment tribunal fees regime heads to the Supreme Court at the end of March. Although the application for judicial review of the new fees regime has been unsuccessful so far, the Supreme Court has granted leave to appeal the most recent decision of the Court of Appeal.
Lots then to look out for - and some cases have the potential for shockwaves. We'll be watching with interest, and will bring you updates when we can - and if you have any concerns about how these decision might impact on you or on your organisation, get in touch!