Employment law: eight cases to look out for in 2015

We round up eight significant employment law decisions expected in 2015, including legal cases pending on collective redundancy consultation and the calculation of holiday pay.

Other notable employment law judgments expected in 2015 cover: employment tribunal fees; reasonable adjustments for disabled people; the meaning of disability; caste discrimination; age discrimination in retirement; equal pay; and agency workers.

Collective redundancy consultation

Usdaw v Ethel Austin Ltd (in administration); Lyttle and others v Bluebird UK Bidco 2 Ltd; Rabal Cañas v Nexea Gestión Documental SA, Fondo de Garantía Salarial (ECJ) In this significant employment law case for large UK employers, the European Court of Justice (ECJ) is considering whether or not the 20-employee threshold for triggering collective redundancy consultation applies to one “establishment” or the whole organisation.

The Employment Appeal Tribunal (EAT) in England and Wales has already held that “at one establishment” should be deleted from collective redundancy consultation legislation, with the Court of Appeal referring the issue to the ECJ to be heard together with Northern Irish and Spanish cases on the same issue.

Holiday pay

Lock v British Gas Trading Ltd (employment tribunal) In 2014, the biggest shift in employment law precedents revolved around how employers should calculate holiday pay. In May 2014, the ECJ held that workers’ commission payments must be included in the calculation of their holiday pay. In 2015, the case is returning to the UK for the employment tribunal to apply the ECJ decision.

An appeal against the EAT decision in Bear Scotland Ltd v Fulton and another; Hertel (UK) Ltd v Wood and others; Amec Group Ltd v Law and others that regular non-guaranteed overtime should be included in holiday pay calculations now look unlikely.

Employment tribunal fees

R (on the application of Unison) v Lord Chancellor and another (High Court) Unison has been given a second chance to challenge the introduction of fees for individuals to bring employment tribunal claims, now that further statistics are available on the drop in discrimination claims.

Disability discrimination

Griffiths v Secretary of State for Work and Pensions (Court of Appeal) The Court of Appeal is hearing an appeal in this case about how employers should treat absence triggers in an attendance policy. The EAT held that an employer’s duty to make reasonable adjustments for a disabled person does not include disregarding the absence triggers in its attendance policy.

Race discrimination

Tirkey v Chandok and another (EAT) There has been controversy over whether “caste” needs to be added to the definition of “race” under the Equality Act 2010, or the Act can be interpreted to include “caste” under the definition of “race”. The UK Government had already indicated that it plans to amend the Equality Act 2010 to cover caste discrimination. In the meantime, the EAT is considering the validity of an employment tribunal decision that the current wording of the Equality Act 2010 is sufficient to allow caste discrimination claims to be brought.

Age discrimination

Harrod and others v Chief Constable of West Midlands Police and others (EAT) An employment tribunal held that the use of reg.A19 of the Police (Pensions) Regulations 1987 to enforce officers’ retirement “in the general interests of efficiency” amounted to unlawful age discrimination and was not justifiable. The forces had used reg.A19 in response to budget cuts and are due to appeal against the decision.

Equal pay

Brierley and others v Asda Stores Ltd (employment tribunal) Group equal pay claims have traditionally been the reserve of public-sector workers. That may be about to change, with Asda workers planning a large-scale equal pay claim in an employment tribunal. Hundreds of female Asda shop workers are claiming that they do work of equal value to staff in Asda’s male-dominated distribution centres.

Agency workers

Moran v Ideal Cleaning Services Ltd and another (Court of Appeal) The EAT held that workers are afforded protection under the Agency Workers Regulations 2010 only if they are supplied by a temporary work agency to work “temporarily” for the end user. The controversial suggestion in this EAT decision that any open-ended assignment would fail as “temporary” is due to be tested in the Court of Appeal.

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