Five important employment law cases in 2015… and five more to come

Equal pay could prove a key battleground in employment law

We round up five significant employment case law decisions that have already been made in 2015, and look at five more important developments expected before the year is out.

Top five employment law decisions in 2015

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So far in 2015 there have been notable employment law cases on: redundancy consultation; holiday pay; annual leave and sickness absence; whistleblowing; and indirect discrimination.

1. Collective redundancy consultation

Usdaw and another v WW Realisation 1 Ltd (in liquidation) and others (the Woolworths case) (ECJ)

Lyttle and others v Bluebird UK Bidco 2 Ltd (ECJ)

In these significant employment law cases for large UK employers, the European Court of Justice (ECJ) held that collective redundancy consultation obligations are triggered when the number of proposed redundancies reaches 20 in one unit.

The ECJ said that the duty is not triggered when there are 20 redundancies across the whole organisation. For a retailer, a unit will typically be an individual store.

Employment law cases on appeal

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2. Holiday pay

Patterson v Castlereagh Borough Council (Northern Ireland Court of Appeal)

The Northern Ireland Court of Appeal has confirmed UK employers’ worst fears about holiday pay.

It held that there is no reason in principle why voluntary overtime should not be included in holiday pay, if it is normally carried out and is an “appropriately permanent feature” of the worker’s remuneration.

As a Northern Ireland case, this decision is not binding on courts and tribunals in England, Wales and Scotland. However, it will be cited in holiday pay cases in those jurisdictions and may be persuasive.

3. Annual leave and sickness absence

Plumb v Duncan Print Group Ltd (EAT)

The Employment Appeal Tribunal (EAT) applied European case law to conclude that a worker on long-term sick leave can carry forward untaken annual leave for up to 18 months from the end of the leave year in which the leave arises.

Importantly, the EAT also held that there is no rule that an employee must be physically unable to take statutory annual leave during sick leave for that annual leave to be carried forward. It is enough that the employee is on sick leave.

4. Whistleblowing

Chersterton Global Ltd (t/a Chestertons) and another v Nurmohamed (EAT)

The law was changed in June 2013 to require that employees reasonably believe that their disclosure is being made “in the public interest” to be given whistleblowing protection. This was the first appeal case to deal with exactly what this definition means.

The EAT held that allegations about accounting malpractices that affected the bonuses and commission of 100 senior managers were made in the reasonable belief that they were in the public interest.

5. Indirect discrimination

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

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

This is an important case for employers and claimants because it appears to place an extra hurdle on individuals claiming indirect discrimination. Claimants have to show not only that they are part of a disadvantaged group, but also why the PCP disadvantages the group, and that they as individuals are disadvantaged in the same way.

Top five employment law decisions still to come in 2015

Later this year, we are expecting further case law on holiday pay, as well as important employment law cases on: employment tribunal fees; attendance procedures; working time; and civil partners’ pension rights.

Equal pay in the private sector: the next big thing?

Female shopfloor workers at Sainsbury’s and Asda are bringing high-profile equal pay claims in two separate employment tribunals, claiming that they do work of equal value, but are paid less than, workers in male-dominated distribution centres.

1. Holiday pay

Lock v British Gas Trading Ltd (EAT)

After the ECJ held that a worker’s commission payments must be included in the calculation of holiday pay, the employment tribunal read an extra subsection into the Working Time Regulations 1998 to comply with the Working Time Directive.

The amendment made it clear that commission should be included in the calculation of a week’s pay for holiday pay purposes.

Eversheds, which is representing British Gas, announced that an appeal has been lodged against the tribunal ruling. The EAT is to hear the case on 8 and 9 December 2015.

2. Employment tribunal fees

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

Employment tribunal fees: judgment published

The judgment in this case was published on 26 August 2015. XpertHR has a full case report, including guidance on the implications for employers.

The High Court dismissed Unison’s second challenge to the tribunal fees system on the basis that it had failed to show that it is excessively difficult for individuals to pay for tribunal claims.

Unison’s challenge to the second High Court decision was heard in the Court of Appeal in June. Judgment is awaited.

3. Attendance procedures

Griffiths v Secretary of State for Work and Pensions (Court of Appeal)

Attendance procedures: judgment published

The judgment in this case was published on 10 December 2015. XpertHR has a full case report, including guidance on the implications for employers.

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.

The Court of Appeal is to hear an appeal in this case about how employers should treat absence triggers in an attendance policy.

The hearing took place in September 2015, with the possibility of a judgment in late 2015.

4. Working time

Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA (ECJ)

Working time: judgment published

The judgment in this case was published on 10 September 2015. XpertHR has a full case report, including guidance on the implications for employers.

In June 2015, the Advocate General gave an opinion, in advance of the full ECJ decision, in this significant case on travelling salespeople’s working time.

The Advocate General considered that travelling time to and from different customers on a route determined by the employer does count as “working time”, even when the travelling time is the first or last journey of the day.

The full ECJ judgment is expected on 10 September 2015.

5. Civil partners’ pensions

Innospec Ltd v Walker and another (ECJ)

Civil partners’ pensions: judgment published

The judgment in this case was published on 7 October 2015. XpertHR has a full case report, including guidance on the implications for employers.

The Court of Appeal heard the appeal in this case, which concerns the accrual of benefits under pension schemes for civil partners, in late June 2015.

The EAT overturned the employment tribunal decision 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 Court of Appeal decision in this complex case should be published later in 2015.

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