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Employment Law cases to look out for in 2017

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2017 is already set to be an interesting year in terms of Employment case law. Gina McCadden, Solicitor in the Employment Team, takes a look at the decisions we are expecting throughout the year and what affect they may have on employers and/or employees.

British Gas Trading Ltd v Lock and another

This has been an influential case for employment law.  In October 2016, the Court of Appeal decided that the Working Time Regulations should be interpreted to include regular commission into holiday pay.

It is expected that British Gas will appeal to the Supreme Court as it currently has 1,000 similar claims from workers. The case is expected to be heard in 2017 but no date has been set as yet.

If British Gas is successful in appealing, then the government will be under pressure to amend the Working Time Regulations in order to make it clear what regular payments, if any, should be included in holiday pay.

If they are unsuccessful then this could have serious financial implications for employers across the UK, with claims most likely to come in from salespeople.  The case will also return to the tribunal to decide how much holiday pay Mr Lock is entitled to receive. This will most likely be done by averaging his pay over a reference period which the tribunal will also have to determine.

Fulton and Baxter v Bear Scotland

In a similar claim to British Gas v Lock this case looked at whether regular overtime and travel allowances should be included in holiday pay.  The claim was brought to the Employment Appeal Tribunal (EAT) to decide whether it is possible to bring a claim for a series of unlawful deductions from wages where there are more than 3 months between the deductions.

The EAT judgment is expected in 2017.

The case is important for employers as it is influential in deciding how far back claims can be made by workers against employers who have failed to include all relevant payments in holiday pay. This decision will have an affect on other claims brought as a series of unlawful deductions and could mean that claims go back a number of years.

Home Office (UK Border Agency) v Essop and others

This case was brought to the Supreme Court in November 2016.

The Court of Appeal held that it is necessary, for claims of indirect discrimination, for the claimant to show why the provision, criterion or practice (PCP) has disadvantaged the group and the individual bringing the claim.

The decision from the Supreme Court is expected in 2017.

This case could be significant in indirect discrimination claims as the current provisions stand that claimant’s must show that they belong to a group and the group as a whole is disadvantaged by the PCP. The decision will determine whether the requirement is now for the claimant to go a step further to show that they have been personally disadvantaged by the treatment. This could in turn make it more difficult for claimant’s to succeed in cases of indirect discrimination.

Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed

This case concerned the ‘public interest’ element of whistleblowing protection.

The legislation provides that a disclosure will not be protected unless it is in the public interest. The EAT in this case held that a disclosure which affected the commission scheme of 100 managers could be in the public interest. The case has now been appealed to the Court of Appeal.

This case will be an important decision in providing some clarity as to those disclosures which fall within the public interest requirement for whistleblowing. The case is due to be heard in June 2017.

Pimlico Plumbers Ltd v Smith

This case concerned the status of self-employed contractors and whether they are workers for the purposes of employment law. The plumbers in this case were engaged by Pimlico and had to use their own tools, had to take responsibility for their work and provide their own indemnity insurance.

In contrast, the plumbers gave the appearance of working fro Pimlico as they had to wear a uniform, drive vans which displayed the Pimlico logo and customers paid Pimlico for the work which was undertaken.

The EAT held that the plumbers were workers but not employees. The Court of Appeal was due to hear Pimlico’s appeal in January 2017.

This case illustrates the burden being placed on companies to show that self-employed contractors are truly self-employed. With similar cases such as Uber and City Sprint deciding that self-employed contractors are workers, the burden on companies is greater. This is because workers are afforded extra rights such as minimum wage, paid holiday and the right not to suffer unlawful deductions from wages. These cases show that the courts are taking a pragmatic and bold approach when deciding on employment status and employers need to be wary of this.

Brierley and others v Asda Stores Ltd

This case will be influential in employment law when considering claims of equal pay.

With new legislation being introduced which requires employers to calculate their gender pay gap by April 2017 and publish these details by April 2018, the issue of equal pay is rife.

Asda shop floor workers have brought a claim stating that they are paid less than the predominantly male warehouse workers.

The courts have decided that the shop floor workers have chosen an appropriate comparator and so are able to bring the claim. The case is due to be heard in 2017 and is described as the largest ever equal pay claim against a private sector employer.

R (on the application of Unison) v Lord Chancellor and another

In July 2013, tribunal fees were introduced so claimants are now charged a fee to bring a claim, a fee if the claim is heard, and another fee if they wish to appeal a decision.

Since the fees were brought in, Unison have been challenging whether they are lawful. So far their attempts have been unsuccessful. The Court of Appeal rejected the appeal stating that there was insufficient evidence of the claimants’ inability to afford the fees.

Unison has further appealed this decision and the Supreme Court are expected to hear the appeal in March 2017.

If you have any questions regarding these cases and how the outcomes could impact your business, then you can contact the Employment Team on 02380 717717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.