Employment law: 10 cases to look out for in 2014

There are very important employment law cases pending on collective redundancy consultation and the calculation of holiday pay. Other notable employment law judgment expected in 2014 cover post-employment victimisation, maternity rights for mothers in a surrogacy arrangement, trade union recognition, discrimination against civil partners in pensions, and disability discrimination. We round up 10 of the significant legal decisions expected in 2014.

Collective redundancy consultation

• Usdaw v Ethel Austin Ltd (in administration); Usdaw and another v WW Realisation 1 Ltd and others (Court of Appeal) The Employment Appeal Tribunal (EAT) held that the words “at one establishment” should be deleted from s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. As a result of this decision, an employer that is proposing 20 or more redundancies across the whole organisation within a period of 90 days or less will have collective consultation obligations. The case now proceeds to the Court of Appeal.
• Lyttle and others v Bluebird UK Bidco 2 Ltd (ECJ) Unbeknownst to the EAT when it gave its decision in the above case, a Northern Ireland tribunal has referred to the European Court of Justice (ECJ) the question of whether or not legislation that requires collective redundancy consultation only where an employer is proposing to make redundant 20 or more employees “at one establishment” is compatible with European law.
• United States of America v Nolan (Court of Appeal) The ECJ has batted away questions from the Court of Appeal asking for guidance on when the obligation to consult collectively on redundancies is triggered. Employers will be hoping that the Court of Appeal, which will now consider the case without the help of the European court, now provides some pointers on when the obligation is triggered.

Holiday pay

• Neal v Freightliner Ltd (EAT) The employment tribunal controversially held that a worker’s overtime should be included in the calculation of holiday pay. This decision is to be appealed to the EAT.
• Lock v British Gas Trading Ltd (ECJ) The employment tribunal referred to the ECJ a number of questions on the relationship between holiday pay and commission, including whether or not “normal pay” when calculating pay for annual leave should include contractual payments received through commission.

Victimisation

• Taiwo v Olaigbe and another; Rowstock Ltd and another v Jessemey and another; Akwiwu and another v Onu; Onu v Akwiwu and another (Court of Appeal) Two separate EAT cases have come to contradictory conclusions on whether or not the wording of the Equality Act 2010 covers victimisation that occurs after the end of employment. The Court of Appeal will decide which one is right.

Maternity rights

• CD v ST (ECJ) The employment tribunal made a reference to the ECJ asking about the maternity rights of women who have a child through a surrogate mother. As UK law stands, mothers in a surrogacy arrangement do not have the same employment rights as conventional mothers, although the UK Government has already promised to amend domestic maternity laws to take account of surrogacy.

Trade unions

• Pharmacists’ Defence Association Union v Boots Management Services Ltd (High Court) The Central Arbitration Committee has ruled that sch.A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, which deals with the admissibility of applications for union recognition, is not compliant with art.11 of the European Convention on Human Rights, which covers the right to freedom of assembly and association. The case now moves on to the High Court.

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Pensions

• Walker v Innospec Ltd and others (EAT) The employment tribunal held that the Equality Act 2010 fails to provide the required protection under EU law for a couple in a civil partnership who were denied accrual of benefits to which married couples were entitled under a pension scheme. The EAT is to consider whether or not the tribunal was right in its decision.

Disability discrimination

• FOA, acting on behalf of Karsten Kaltoft v Billund Kommune (ECJ) A Danish court has referred to the ECJ various questions about whether or not obesity is covered by EU legislation, including whether or not obesity can be deemed to be a disability under the Equal Treatment Framework Directive.