Employment law cases 2017: seven decisions to look out for

There is much for the employment law aficionado to be excited about in 2017. Dirk v. Mallinckrodt / imageBROKER/REX/Shutterstock.

We round up seven significant employment law decisions expected in 2017, with cases pending on employment status, equal pay, whistleblowing, employment tribunal fees, and holiday pay.

Other notable employment law judgments expected in 2017 cover religious discrimination and indirect discrimination.

Podcast: Key employment cases for 2017
XpertHR employment law editors look at key cases that are due to be decided during 2017.

1. Employment status

Aslam and others v Uber BV and others (EAT)

This was the employment tribunal case that everyone talked about in 2016.

The employment tribunal decided without hesitation that Uber drivers are workers rather than self-employed, meaning that they are entitled to receive the national minimum wage and paid annual leave.

The drivers’ claims are being seen as a test case for the employment status of individuals engaged in non-traditional ways by companies operating in the gig economy.

The issue is now expected to go to the Employment Appeal Tribunal (EAT).

There are similar claims pending against the likes of Excel, City Sprint, Addison Lee, eCourier and Hermes.


2. Equal pay

Brierley and others v Asda Stores Ltd (employment tribunal)

The difference in pay between men and women will be the big issue in employment law in 2017.

Gender pay gap reporting legislation will require employers to calculate their gender pay gap from April 2017 and publish the details by April 2018.

Meanwhile, Asda is facing a mass equal pay claim in an employment tribunal.

The claimants – shopfloor workers who are predominantly female – are seeking to compare their jobs in retail stores with the jobs of colleagues who work in distribution centres, which are traditionally male dominated.

All eyes will be on the group equal pay claim against Asda. It is being described as the largest ever equal pay claim against a private-sector employer.


3. Whistleblowing

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

Perhaps the liveliest area for case law in the last few years relates to the scope of the term “in the public interest” in whistleblowing legislation.

Since June 2013, whistleblowing laws have provided that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made “in the public interest”.

The EAT in Chesterton held that matters potentially affecting the operation of the commission scheme of more than 100 managers at a large firm of estate agents could be “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 correct.

The case is listed to be heard in June 2017.


4. Employment tribunal fees

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

Since July 2013, workers in the UK have been charged a fee to bring a claim to tribunal, a further fee if the claim is heard and another charge if they want to appeal the decision.

Following their introduction, Unison sought unsuccessfully to have employment tribunal fees ruled unlawful.

The challenge went to the Court of Appeal, which rejected it on the basis that there was insufficient evidence of claimants’ inability to afford the fees.

The Supreme Court is expected to hear Unison’s appeal against the Court of Appeal decision in March 2017.


5. Holiday pay

British Gas Trading Ltd v Lock and another (Supreme Court)

In October 2016, the Court of Appeal confirmed employers’ worst fears when it accepted that the Working Time Regulations can be interpreted to require the inclusion of commission in holiday pay.

British Gas is expected to appeal to the Supreme Court in this important holiday pay case, given that it has 1,000 similar claims from its workers waiting in the wings.

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

No date has been set for the Supreme Court hearing. It is possible that the case will be fast-tracked, given the serious financial implications for employers across the UK.


6. Religious discrimination

Bougnaoui and another v Micropole Univers; Achbita and another v G4S Secure Solutions NV (ECJ)

Perhaps the biggest employment law surprise of 2016 was the Advocate General’s opinion in Achbita on when employers can ban religious dress, including Muslim headscarves (hijabs).

The Advocate General in the Belgian reference in Achbita suggested that an employer can ban a Muslim woman from wearing an Islamic headscarf on the basis of maintaining its religious and political neutrality.

However, another Advocate General in the French reference in Bougnaoui thought that an employer cannot have a blanket ban on religious dress purely because neutrality is required or a client or customer objects.

The two European Court of Justice (ECJ) judgments, expected to be delivered in 2017, will decide which Advocate General is right.


7. Indirect discrimination

Essop and others v Home Office (UK Border Agency); Naeem v Secretary of State for Justice (Supreme Court)

The law on indirect discrimination is currently in a state of flux.

These two race discrimination claims were heard together in the Supreme Court in November 2016.

In Essop, 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 Naeem, the Court of Appeal held that the existence of a non-discriminatory reason for Muslim prison chaplains being paid less than their Christian counterparts defeated an indirect discrimination claim.

The Supreme Court decisions in both cases are eagerly awaited, with employment lawyers hoping that the judgments will set out clearly how tribunals should be approaching indirect discrimination claims.

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