Employment law cases 2016: eight decisions to look out for

British Gas Trading vs Lock looks at holiday pay and lost commission earnings
British Gas Trading vs Lock looks at holiday pay and lost commission earnings

We round up eight significant employment law decisions expected in 2016, with cases pending on holiday pay, redundancy consultation and whistleblowing.

Other notable employment law judgments expected in 2016 cover employment tribunal fees and a number of areas of discrimination, including age, religion and equal pay.

1. Holiday pay

British Gas Trading v Lock and another (EAT)

The Employment Appeal Tribunal (EAT) heard the appeal in this important holiday pay case on 8 and 9 December 2015.

The EAT considered the application to UK law of the European Court of Justice (ECJ), ruling that commission must be included in holiday pay calculations.

British Gas has around 1,000 potential claims from its workers waiting in the wings, pending the outcome of the appeal in this case.

Other employers are also likely to face claims from salespeople over the level of their holiday pay.


2. Redundancy consultation

United States of America v Nolan (Court of Appeal)

In 2015, the ECJ reversed a controversial EAT ruling in the Woolworths case, where it held that, when deciding whether or not collective redundancy consultation obligations are triggered, the key measurement is the “entity” to which workers are assigned, such as a single store for a retailer.

The ECJ said that employers do not have to measure redundancies across the whole organisation.

But perhaps United States of America v Nolan will be the big redundancy consultation case in 2016?

This involves the US Government’s redundancy consultation obligations on the closure of a US army base, got bogged down in jurisdictional issues.

The UK Supreme Court eventually ruled that the obligations do apply in this particular case – it now goes back to the Court of Appeal to consider the timing of redundancy consultation.


3. Whistleblowing

Chesterton Global (t/a Chestertons) v Nurmohamed (Court of Appeal)

In 2015, case law sprouted up on an important change to whistleblowing legislation that took effect in June 2013.

This change provides that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made “in the public interest”.

The Court of Appeal is expected to decide whether or not the EAT’s liberal interpretation in Chesterton of what that phrase means is the correct one.


4. Employment tribunal fees

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

In 2016, Unison will have one last go at challenging the introduction of fees for bringing an employment tribunal claim.

This time the case will be heard in the Supreme Court.

While the Court of Appeal rejected Unison’s challenge to tribunal fees, it did say that the decline in claims is “sufficiently startling” to merit a review of fees to prevent individuals being priced out of bringing a claim.


Luis Santos / Shutterstock

5. Equal pay

Brierley and others v Asda Stores (employment tribunal)

With gender pay reporting requirements on their way in 2016 for large employers, all eyes will be on two group equal pay claims expected against Asda and Sainsbury’s.

In the group claim against Asda, the claimants – both male and female – are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres.

These “work of equal value” claims may be two of the highest-profile employment cases in 2016.

The gender pay reporting Regulations come into force in early 2016 because they have to be introduced within 12 months of the passing of the Small Business, Enterprise and Employment Act 2015, which happened on 26 March 2015.

The law will apply to all employers in the private, public and voluntary sectors with 250 or more employees.


6. Age discrimination

Chief Constable of West Midlands Police v Harrod and others (Court of Appeal)

For police forces, a key case in 2015 was the EAT decision that the wide application of the “A19 rule” police pensions rule to retire officers after 30 years’ service to cut costs was not age discrimination.

The A19 rule allows police forces, in the “general interests of efficiency”, to retire police officers with 30 years’ service where they are entitled to receive a pension of at least two-thirds of average pensionable pay.

It has been announced that the EAT decision is being appealed to the Court of Appeal.


7. Religious discrimination

Bougnaoui v Micropole Univers (ECJ)

This French reference to the ECJ could put Islamophobia in the workplace in the spotlight in 2016.

An employee who wore an Islamic headscarf was told by her French employer to remove it while visiting a client, after a customer complained about her appearance.

The Muslim employee was dismissed after she refused.

The case appears to revolve around whether or not the need to adopt a “neutral appearance” with a client can be a genuine occupational requirement of a job.


8. Discrimination

Essop and others v Home Office (UK Border Agency) (Supreme Court)

In 2015, the Court of Appeal held that it is necessary in indirect discrimination claims for the claimant to show why the provision, criterion or practice has disadvantaged the group and the individual claimant.

In this important discrimination case, permission has been granted to appeal to the Supreme Court against the Court of Appeal decision.


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