Six Employment Law cases to watch in 2021

There are several important employment law developments employers can expect in 2021 as the outcome of various tribunal cases will be decided.  Staying up to date with tribunal cases is an excellent way for employers to understand how the law is applied in practice, and gives valuable insight as to how they can avoid the same situation.  Our Employment Law team today review six of the major cases due to be decided by the Supreme Court this year and their significance for employers.

Minimum Wage for sleep in workers

The case of Royal Mencap Society v Tomlinson-Blake was heard by the Supreme Court in February 2020.  When the Court’s decision is published, it will finally answer the question of whether “sleep-in” workers need to be paid national minimum wage for the time they spend asleep.  As the law currently stands, such workers are only “available for work” and so not entitled to national minimum wage except for the time they are up and actually working.  This case has been anxiously awaited by businesses that employ sleep-in workers, such as those in the care sector, as it may have major consequences on how much they pay their workers.

Calculation of holiday pay for part-year workers

Harpur Trust v Brazel will decide whether the holiday entitlement of part-year workers on permanent contracts should be pro-rated to reflect the fact that they do not work the full year.  The common approach used to be that the annual leave entitlement of a part-year worker would be calculated as 12.07% of the worker’s annualised hours which resulted in the worker being paid the pro-rated equivalent of 5.6 weeks’ holiday.  This changed after the Court of Appeal ruled that holiday pay should instead be based on the worker’s earnings over the 12 week period before the holiday was taken (this has since been updated by legislation to 52 weeks).  When this method is used, part-year workers are paid a proportionately higher rate of pay for their holiday than full-year workers.

If the appeal to the Supreme Court is successful it may mean employers can once again pro-rata a part-year worker’s holiday pay, which would have an impact on businesses that employ people on permanent contracts for part of the year, such as schools.  The Supreme Court is due to hear the case in November 2021.

Employment status of ‘gig’ workers

In Aslam and others v Uber BV and others the Supreme Court will have the final say on whether Uber drivers are workers or are self-employed.  The Court of Appeal previously found Uber exerted a high degree of control over the drivers, and it agreed with previous tribunal decisions which said that drivers were workers as long as they were in the territory in which they were authorised to work, they were signed into the app and ready to accept bookings.  Granting worker status to the drivers meant they were entitled to certain rights such as the right to be paid national minimum wage and paid annual leave.

This case was heard in July 2020 and the outcome could have huge implications for other employers whose business model is based on the ‘gig’ economy.

Collective Bargaining

The case of Kostal UK Limited v Dunkley and others will consider whether an employer can ever bypass a recognised trade union and make an offer directly to its workforce.  In this case, an employer had reached a stalemate with the union, and so offered a deal directly to the workforce telling them there would be consequences for rejecting it.  The union argued this amounted to unlawful inducement to opt out of collective bargaining.  The employer argued it had no intention of inducing staff to opt out of collective bargaining; it merely wanted to give employees the opportunity to accept the deal.  The Court of Appeal reasoned that if the employer’s offer was unlawful, it would mean that unions have an effective veto over any change to the terms of employment, no matter how minor.  The Court reasoned that this was not the intention of trade union legislation and that a one-off direct offer to employees did not constitute unlawful inducement.

This case will be heard by the Supreme Court in May 2021.  If the Supreme Court upholds the Court of Appeal’s decision it will mean that employers can break an impasse in negotiations with unions by making “one-off” offers directly to employees.

Including voluntary overtime in holiday pay

The case of Flowers and others v East of England Ambulance Trust will consider whether voluntary overtime must be included in the calculation of holiday pay under the Working Time Directive.  The Court of Appeal had previously decided that voluntary overtime should be included in the calculation of holiday pay where overtime was paid “regularly.”  This case will be of interest to employers who give workers the opportunity of completing overtime and is due to be heard by the Supreme Court in June 2021.

Equal pay

The case of Asda Stores Ltd v Brierley and others is one of the largest equal pay claims in the private sector.  The Supreme Court will decide a preliminary matter of whether the work undertaken by the predominately female Asda supermarket workers is comparable to the work undertaken by the predominantly male workers in the Asda depots. The Court of Appeal previously held that the work was comparable for the purposes of equal pay claims.

This case was heard by the Supreme Court in July 2020.  The decision, once published, may help clear up some questions regarding statutory interpretation in equal pay cases.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, including these mentioned here, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

Alternatively, if you are currently facing any similar issues within your workplace and are looking for advice, you can contact the team today on 023 8071 7717 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.