Employment Case Law Review 2017

Happy New Year – 2018 is here! Before leaving 2017 in the past, let’s reflect on a selection of the most important decisions that affected the employment law landscape during the last 12 months … and what a year it was!

Abolition of Employment Tribunal fees  

The employment law world was rocked when the Supreme Court unanimously ruled in a case bought by Unison that Employment Tribunal fees were unlawful on the basis that they denied access to justice. The fees regime ceased immediately and the Government is in the midst of repaying Claimants for fees paid, a process which is likely to cost it between £1.8m and £2m.

Employment status in the ‘Gig economy’

A number of cases in 2017 dealt with the tricky issue of worker status in the so-called ‘gig economy’. Pimlico Plumbers and Uber are two examples of companies whose ‘self-employed’ workers were found to be, in fact, either workers or employees that had been denied basic rights, such as paid annual leave, along with protection from discrimination and for whistleblowing – a costly mistake! It’s not necessarily the end of the story; Pimlico Plumber’s appeal is to be heard in February 2018. Uber has also appealed but no date has been set as yet. Watch this space …

No limit on holiday pay claims by “workers” who didn’t take annual leave 

This is another decision for employers with a large number of independent contractors to pay attention to. Here, an individual who had agreed to be self-employed, claimed after his retirement that he was entitled to 13 years’ worth of backdated holiday pay by virtue of the fact that he was really a “worker”. The ECJ confirmed that whether an individual had asked for paid leave or not, and no matter what their status was ‘on paper’, if they were deemed to be a “worker”, the onus is on the employer to provide holiday pay and, crucially for Claimants, without any limit on the accrual period of the unpaid leave. The case will be considered again by the Court of Appeal this year. 

Overtime must be included in holiday pay

As expected, the EAT ruled that “regular and settled” voluntary overtime should be included in holiday pay. This was no surprise given the string of cases relating to holiday pay that had gone before it, in particular a ruling that compulsory overtime should be included in holiday pay. The EAT also held that call out and stand-by payments that amount to “normal remuneration” should be taken into account.

Shared parental leave policies and sex discrimination

If an employer pays a woman enhanced maternity leave should it also provide enhanced shared parental pay? According to the Employment Tribunal in a case involving Capita Customer Management, yes, and to do otherwise would amount to direct sex discrimination against men. Controversially, the male employee was allowed to compare himself to a woman on maternity leave (as opposed to only a woman on shared parental leave). The decision conflicts with a similar Tribunal case against Leicestershire Police. Both cases are being appealed and are worth watching out for in 2018!

Whistleblowing and the “public interest test”

The Court of Appeal ruled that a concern raised by an employee that accounting malpractice within the company aimed at reducing commission payments to around 100 senior managers, including himself, met the requirement of being in the public interest. This was despite the fact that the complaint was in the Claimant’s own interest and had no effect on the wider public, outside of the company’s staff. The Court of Appeal ruled that it was necessary to look at all the surrounding circumstances not just at how many people were affected or whether anyone was affected outside of the workplace. Undoubtedly, 2018 will bring more cases on this matter.

2018 is already shaping up to be an interesting year…

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