The 12 cases of Christmas (2017)
Author: Simon Fennell
Applies to: England, Wales and Scotland
As Christmas approaches and 2017 draws to a close, we thought it seasonal to pick 12 of the most notable cases this year and see what lessons employers can take from them.
- The most publicised case this year has to be R (on the application of Unison) v Lord Chancellor. The Supreme Court unanimously ruled that Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) fees were unlawful, as they prevented access to justice and were also indirectly discriminatory against women. Statistics show that women raise more discrimination claims and as a result are disproportionately affected by the higher fees charged for discrimination claims. The government is now refunding around £33 million to those who have already been charged fees since their introduction in 2013.
- Another case that hit the headlines was Asda Stores Ltd v Mrs S Brierley and others. Here, the EAT held that female claimants who work in Asda's retail stores can compare themselves, for the purposes of an equal pay claim, with higher paid men who work in distribution centres. The case is significant because it may encourage female staff all over the country to compare themselves with men in their business carrying out different, but equivalent, skilled work. It is important to note that the question which has been answered by the EAT is limited to whether, in legal argument, the female claimants can compare themselves to the male comparators. An employment tribunal has yet to consider whether their jobs are actually of equal value and whether there is a right to claim equal pay.
- Pimlico Plumbers Ltd v Smith is one of a string of cases around the tricky area of worker/self employed status. Mr Smith was engaged under the terms of an agreement which clearly identified him as a 'self-employed operative'. However, the ET concluded that he was actually a worker given that there was an obligation for him to provide his services personally and the company exercised a high degree of control over him. This decision was upheld on appeal by the EAT and the Court of Appeal (CA). All employers should consider reviewing their engagement models, particularly those who currently engage individuals on a self-employed basis, to determine whether there is a risk that their status could be challenged. Pimlico Plumbers Ltd have been granted the right to appeal to the Supreme Court.
- A case which highlights the result of miscategorising employment status is King v Sash Window Workshop Ltd. In this case, the European Court of Justice (ECJ) found that where a worker has not requested or taken holiday based on the employer wrongly informing him that he was not due holiday pay, under the Working Time Directive his leave rights are carried over until termination. At this point, a worker will be able to claim in lieu back to the start of the employment relationship. The case concerned a UK commission-based window salesman who did not receive a paid holiday for 13 years because he was miscategorised as self-employed when he was actually a worker.
- In another case concerning holiday pay, the EAT held in Dudley Council v Willet that regular, long running, voluntary overtime should be included in holiday pay calculations for the Working Time Regulations. The EAT concluded that overtime carried out roughly every fourth or fifth week over several years was sufficiently regular on the facts of the case. While the decision did not represent a departure from the principles established in previous case law, it confirms their application to voluntary overtime. Employers may wish to audit any potential liability and consider whether their system of calculation needs to be amended going forwards.
- In Sunderland v Drossou, the tribunals have altered the method of calculating losses that had stood for decades. Here the ET decided (and the EAT agreed) that there was an obligation to include employer pension contributions into the calculation of a week's pay. This was an important development because the concept of a week's pay is used as a basis to calculate many payments and remedies, including the statutory cap on the compensatory award for unfair dismissal.
- In another case which also brought about financial changes, the CA in De Souza v Vinci Construction (UK) Ltd held that employment tribunals in England and Wales should increase compensation for injury to feelings and personal injury in discrimination cases by 10%, so as to align the tribunals with the civil courts. Following a short judicial consultation after the decision, presidential guidance updated the well-known Vento bands of compensation for injury to feelings awards, taking into account inflation and applying the uplift. In respect of claims presented on or after 11 September 2017, the new bands for awards are: lower (less serious cases) £800 to £8,400; middle (serious cases but that do not merit an award in the upper band) £8,400 to £25,200; and upper (most serious cases) £25,200 to £42,000 with the most exceptional cases capable of exceeding £42,000. The bands will now be updated every 12 months.
- This year also saw three cases which concern dismissal and suspension. Adesokan v Sainsbury's Supermarkets Ltd highlighted how an unintentional act or omission can justify summary dismissal. The CA held that the High Court had been entitled to characterise Mr Adesokan's failure to ensure that a key company procedure was properly carried out as a breach of trust and confidence. The breach was sufficient to constitute gross misconduct. Despite not actually causing Sainsbury's any harm, the court said that the question was whether the negligent dereliction of duty was 'so grave and weighty' as to amount to a justification for summary dismissal. As a takeaway point, employers should check their disciplinary policies to ensure that examples of gross misconduct are not limited to actions and ideally that reference is made to negligent omissions leading to a loss of trust and confidence.
- All cases concerning dismissals are fact sensitive and Arnold Clark Automobiles Ltd v Spoor illustrates that dismissal for gross misconduct will not always be fair. The case concerned physical violence between two employees. During the disciplinary process, the company identified that it had a zero tolerance approach to any and all physical violence and that such cases would normally result in immediate dismissal. The EAT was clear that the dismissal was unfair, because the use of the word 'normally' had prevented the company from exercising the relevant discretion to consider other sanctions. The employer erred in not having regard to all the circumstances, including Mr Spoor's exemplary record over 42 years.
- Another case where the employer failed to consider all the relevant circumstances was Agoreyo v London Borough of Lambeth. Here, the suspension of a primary school teacher after allegations that she had used unreasonable force towards a child was held to be a breach of the implied term of mutual trust and confidence, amounting to a repudiatory breach of contract and a constructive dismissal. The case is a reminder that employers must carefully consider when suspension is appropriate following allegations of misconduct, as suspension should not be adopted as a default position or a knee jerk reaction.
- Demonstrating religious belief through dress continues to be an area of contention and in Bougnaoui v Micropole SA, the ECJ ruled that a customer's objection to an Islamic headscarf cannot be a genuine and determining occupational requirement. Therefore, the dismissal of that worker for refusing to remove her headscarf following an instruction to do so constituted direct discrimination. The concept of a genuine and determining occupational requirement refers to a requirement objectively justified by the duties carried out or of the context in which they are carried out, and not subjective considerations such as customer preference.
- And finally, in Barbulescu v Romania, the Grand Chamber of the Court of Human Rights held that employers must inform employees if they are monitoring their communications. The decision reminds employers that employees have a right to respect for privacy in the workplace. The dissenting opinions from seven judges demonstrates the controversial nature of the decision, but with the GDPR on the horizon in May 2018, the decision is not really that surprising.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.