Employment law cases to watch out for in 2023

As part of our employment law update event this week, we looked at key cases which employers need to be aware of in 2023.  Here’s a summary, but get in touch with Tiggy if you have any other queries:

USDAW v Tesco Stores: this case considered whether employees could obtain an injunction to prevent them from being “fired & re-hired” by Tesco.  In July 2022, the Court of Appeal said had said no and that Tesco was able to terminate these employees’ contracts by serving them with their contractual notice.  However, the union USDAW was successful in obtaining agreement that they could appeal the decision to the Supreme Court.  The hearing date has yet to be set.

HMRC v Professional Game Match Officials: this case questioned the employment status of match officials at football games in the context of the referees having an ‘umbrella’ contract in place setting out overarching terms, but also a more specific contract that was entered into each time an official agreed to referee a particular match.  The Court of Appeal had decided that they were employed for the duration of the matches, but the Supreme Court will visit this again in June this year.  This case will be relevant if you engage individuals as ‘self employed workers’ but where there is a risk that they could be employees for tax and employment status purposes.

Chief Constable of Northern Ireland v Agnew: it’s been a busy time recently with cases on holiday pay (I might sound like a broken record if I mention Harpur Trust v Brazel or Smith v Pimlico Plumbers again …) but this case has challenged the view that claims for a series of shortfalls in holiday pay can be broken if there is more than 3 months between any of those shortfalls occurring.   This has been useful in limiting the value of these claims. However, the NI courts decided that claims could be joined together even if the break exceeded 3 months.  At the moment, this decision is binding in NI only, but that could all change following the hearing which took place at the Supreme Court in December.  If the Supreme Court agrees with the NI courts, the decision would apply UK wide.

Bailey v Stonewall, Higgs v Farmor’s School, Mackereth v DWP: these cases will be heard by the EAT/the Court of Appeal and they follow the decision in the Forstater case last year which established that “gender critical views” are capable of being a protected belief under the religion and belief aspects of the Equality Act 2010.  These claims all concern the rights of people who manifest those gender critical views.  As with any other discrimination claim, going on to establish a link between how the Claimant has been treated and the holding of that belief will be necessary in order to fully succeed with these claims.  Sometimes termed as “clash of rights” cases, these circumstances can be tricky for employer’s to manage, given the need to balance protection for holding gender critical views against individuals with other protected characteristics.

Bathgate v Technip: This case was heard last year and made clear that Settlement Agreements can only be used to settle ‘particular’ complaints.  In particular, employers cannot protect themselves against discrimination claims where the discrimination takes place after the agreement has been entered into.  Employers should carefully consider what claims are being waived by the employee and checking whether the payment offered feels appropriate if there are any circumstances which could lead to future claims.  In some situations, using an ACAS conciliated COT3 agreement might be helpful to give the employer greater protection.   If you want to chat through your approach to Settlement Agreements, then let us know.

Fentem v Outform EMEA Ltd:  this case confirmed that if an employee resigns and an employer decides to use this resignation to trigger a pay in lieu of notice (PILON) clause in the employment contract, the employee’s employment will still be deemed to have ended by reason of their resignation, not because the employer has ended their employment early under the PILON clause.  This case reiterates our advice that it’s sensible to use a PILON clause in your contracts as standard.  Get in touch if you need some help with the wording.