What Employment Tribunal cases should I look out for in 2019?

Employment law is constantly evolving, so it can be hard to keep track of the latest updates. To help guide you, we’ve devised a list of the top Employment Tribunal cases you should look out for in 2019 and how any of the decisions that are made could affect your business.

1. National minimum wage for sleep-in workers - Royal Mencap Society v Tomlinson-Blake

This case went to the Court of Appeal, where the Court held that sleep-in care workers in residential accommodation were not entitled to the National Minimum Wage whilst sleeping. The Court of Appeal held that National Minimum Wage legislation requires employers to pay the minimum wage to sleep-in workers only when they are awake and “available” to work.

The case will be heard by the Supreme Court, where the trade union organisation, Unison, will argue that care workers who sleep on-site and can be called upon at any time should be paid the National Minimum Wage throughout the whole of their sleep-in shift. If Unison are successful this could change the way care-workers are paid whilst on a sleep-in shift.

2. Enhancement of shared parental pay - Ali v Capita Customer Management Ltd

This case will consider when an employer provides enhanced maternity pay, whether they have to provide enhanced shared parental pay too. This case will decide whether or not it is sex discrimination for employers to enhance pay during maternity leave, but not during shared parental leave.

Mr Ali claimed he was discriminated against because his employer denied him the opportunity to take shared parental leave on full pay because of his gender. The Employment Appeal Tribunal ruled in the employer’s favour, and the case will be heard by the Court of Appeal this year. If the Court of Appeal rules in Mr Ali’s favour, companies will need to review their policies, and any discrepancies between maternity pay and shared parental leave pay.

3. Whistleblowing - Royal Mail Ltd v Jhuti

Ms Jhuti alerted management to an alleged inconsistency in the way colleagues were offering discounts to customers. She was then put under pressure by her line manager to withdraw her allegations, which she did. She was dismissed at a later date, and her line manager testified that Ms Jhuti was dismissed because she had not followed up on training recommendations to improve her performance.

The Court of Appeal ruled against Ms Jhuti claiming that a whistleblowing unfair dismissal claim cannot normally succeed where the decision-maker was unaware of the protected disclosure when they decided to dismiss. The decision will be reviewed by the Supreme Court this year; we are currently awaiting a hearing date.

4. Determining employment status - Aslam and others v Uber BV and others

It may seem appealing for companies to hire freelance workers, or those on short-term contracts, claiming to be self-employed (gig economy staff), but the Courts have considered how such people have been treated. Should the Courts determine that gig economy staff are workers, they would be entitled to basic employment rights, such as statutory sick pay, national minimum wage, and paid annual leave.

After a significant court battle over the status of Hermes delivery drivers, they have now struck a deal with GMB Union which could impact the future of the gig economy. Hermes couriers can now opt to become “self-employed plus” allowing them to receive holiday pay and individually negotiated pay rates of at least £8.55 per hour. In return for these rights, they will have to follow delivery routes specified by Hermes; previously the couriers were able to deliver parcels in any order they chose.

As a result of this deal, we may see further action from cases examining employment status, including:

• a possible appeal to the Supreme Court against the Court of Appeal’s decision that Uber drivers are workers and not self-employed;
• further developments in the Independent Workers’ Union of Great Britain’s challenge against the Central Arbitration Committee’s decision that Deliveroo couriers are self-employed; and
• potential appeals from Addison Lee to the Court of Appeal against the Employment Appeal Tribunal’s decisions classifying its couriers and drivers as workers, and not as self-employed.

5. The consequences of restrictive covenants - Tillman v Egon Zehnder Ltd

The Supreme Court will determine whether or not a restrictive covenant that prevents an ex-employee from being “concerned or interested in” a competitor for six months is too wide to be enforceable.

Ms Tillman was prevented from working for a US company, due to a restrictive covenant within her contract which stated she should not “directly or indirectly engage or be concerned or interested in any business carried out in competition”. The Court of Appeal interpreted the phrase “concerned or interested in” as too wide to be enforceable, as it could prevent a person from holding shares in a company. The clause was set aside in its entirety, meaning that Ms Tillman was free to work for the US firm.

If the Supreme Court agrees with the decision, employers will need to reconsider the restrictive covenants they are asking their employees to enter into. The Supreme Court was due to consider this case on 22 and 23 January 2019. We await their decision.

6. Vegans and ethical beliefs – Casamitjana v League Against Cruel Sports

When Mr Casamitjana found out that his employer, who are against animal cruelty, invested some of its pension funds in pharmaceutical and tobacco companies which used animal testing, he disclosed this to his colleagues and was dismissed on the grounds of gross misconduct. The Employment Tribunal will determine whether veganism is held to be a belief, and therefore a protected characteristic under the Employment Rights Act 1996.

If the Employment Tribunal rules in Mr Casamitjana’s favour, employers will need to consider how they are treating employees with vegan beliefs, and employees’ lifestyle choices.

As always these cases are judged on the individual facts, and shouldn’t be relied on too heavily. If you would like advice on any of the above issues, please contact a member of our Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

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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.