The decision by the Supreme Court that the employment tribunal fees system is unlawful may be one of the most monumental employment law decisions this year, but there have been a number of other significant cases. Laura Merrylees looks at six of the top employment law decisions in 2017, and a few decisions to look out for in the future.
1. Challenge to employment tribunal fees
R (on the application of Unison) v Lord Chancellor (Supreme Court)
In a remarkable turn of events, Unison’s challenge to the employment tribunal fees system succeeded at the final hurdle.
In a damning indictment of the use of high fees to reduce the number of cases, seven Supreme Court judges decided unanimously that the employment tribunal fees system is unlawful and the legislation that introduced the fees must be quashed.
The case has been described as one of the most important judgments in the history of UK employment law, and an important constitutional case, reiterating that the Government cannot use its powers to block citizens’ access to justice.
It will now have to pay back around £32 million to claimants who have already been charged a fee since they were introduced in 2013.
2. Long-term sickness absence and disability
O’Brien v Bolton St Catherine’s Academy (CA)
This Court of Appeal decision reflects a growing trend in the number of claims based on discrimination arising from disability.
Ms O’Brien was dismissed by her employer following a period of long-term sickness absence.
At her internal appeal hearing, Ms O’Brien presented her employer with medical evidence indicating that she was fit to return to work. However, the appeal panel was not convinced by this and upheld the dismissal.
While the case was in the Court’s view “near the borderline”, the Court nevertheless found that it was unreasonable for the school to disregard new evidence without a further medical assessment.
In practice, before making a decision to dismiss, employers should consider whether or not they can be expected to wait any longer and, if so, how much longer.
Podcast: Case law update
XpertHR employment law editors look at key cases in 2017.
3. Enhancing shared parental pay
Ali v Capita Customer Management Ltd (employment tribunal)
Since shared parental leave was introduced in 2015, the issue of whether or not employers need to enhance shared parental pay if they already enhance maternity pay has been controversial.
The recent employment tribunal decision in Ali v Capita Customer Management Ltd has generated further uncertainty.
The claimant issued a claim in the employment tribunal following his employer’s refusal to enhance his pay during a period of shared parental leave.
He complained that this amounted to direct sex discrimination given his employer’s policy to enhance maternity pay.
The employment tribunal upheld his claim, commenting that the role of primary carer is a matter of choice for the parents, but that the choice should be free of “generalised assumptions” that the mother is always best placed to undertake the primary role and should get full pay.
As the case is a first-instance decision and therefore not binding, employers will have to wait for an appeal court decision before greater certainty is provided.
It has been reported that the claimant’s employer, Capita, will appeal the decision.
4. Religious dress in the workplace
Bougnaoui and another v Micropole Univers (ECJ)
Achbita and another v G4S Secure Solutions NV (ECJ)
In 2017 the European Court of Justice (ECJ) gave its judgments in the two religious dress cases of Achbita and Bougnaoui.
Prior to reaching the ECJ, the Advocate General gave its opinion in the Belgian case of Achbita on when employers can ban religious dress, including Muslim headscarves (hijabs).
The Advocate General suggested that an employer can ban a Muslim woman from wearing an Islamic headscarf on the basis of maintaining its religious and political neutrality.
Employment law cases 2017: podcasts
Abolition of employment tribunal fees
However, another Advocate General in the French reference in Bougnaoui thought that an employer could not have a blanket ban on religious dress purely because neutrality is required or a client or customer objects.
In the Achbita case, the ECJ decided that as long as rules on religious dress are applied consistently across the board, a blanket ban is not directly discriminatory but could potentially be indirectly discriminatory if not justified.
However, in Bougnaoui, the ECJ decided that the one-off removal of an employee who wears a religious item cannot be defended purely on the basis that a customer objects and that a defence is only available in very limited circumstances.
In practice, employers need to be wary of relying on these cases. Both involve French and Belgian laws and will now need to be decided in the domestic courts of France and Belgium, applying the ECJ guidance.
5. Disability discrimination in recruitment
Government Legal Service v Brookes (EAT)
In this case, the employer required all job applicants to complete an online multiple-choice psychometric test.
The claimant, who has Asperger’s syndrome, asked if she could submit her answers in a short narrative form because of her condition.
This request was refused and she was told that an alternative test format was not available.
The claimant brought claims of indirect disability discrimination, a failure to make reasonable adjustments and discrimination arising from disability.
The EAT upheld the employment tribunal’s decision that the requirement to complete the test placed the claimant at a particular disadvantage because of her condition.
Despite the fact that the employer had a legitimate aim in operating the test, the means of achieving that aim was not proportionate.
This case serves as a strong reminder to employers of the need to be flexible when it comes to recruitment selection methods and disabled applicants.
6. Whistleblowing
Chersterton Global Ltd (t/a Chestertons) and another v Nurmohamed (CA)
This Court of Appeal decision upheld the earlier decision of the Employment Appeal Tribunal (EAT) 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.
The Government changed whistleblowing laws in 2013 to provide that a disclosure is not protected unless the employee reasonably believes that the disclosure is being made “in the public interest”.
This was to prevent workers using the legislation to make protected disclosure claims in relation to complaints about their employment contracts.
The Court of Appeal concluded that the statutory test of what is “in the public interest” does not lend itself to absolute rules and the employment tribunal should take a number of factors into account.
These factors include the numbers of employees involved and the importance of the interest affected.
For a claim to pass the public interest test, the whistleblower must have a genuine belief that the disclosure was in the public interest, even if it later becomes clear that the belief was mistaken.
Three employment law decisions still to come
Later this year, we are expecting further significant decisions on employment status, holiday pay and social media monitoring.
1. Employment status of Uber drivers
Aslam and others v Uber BV and others (EAT)
In this high-profile case, Uber drivers regarded by the company as self-employed claimed that they are in fact workers.
In the employment tribunal decision of 28 October 2016 (Aslam and others v Uber BV and others), the tribunal held that the Uber drivers are workers.
Taylor review
This means that they are entitled to receive basic worker rights such as the national minimum wage and paid annual leave.
Uber is appealing to the Employment Appeal Tribunal (EAT) against the first-instance decision. The EAT will hear the appeal on 27 and 28 September 2017.
The Taylor review into modern employment practices recommends that the distinction between workers and those who are genuinely self-employed needs to be clearer.
2. Annual leave
The Sash Window Workshop Ltd and another v King (ECJ)
This case represents yet another stage in the ongoing saga of holiday-related claims.
In this case, the Employment Appeal Tribunal (EAT) suggested that workers should be allowed to carry over untaken holiday into the next year if they are genuinely prevented from doing so for “reasons beyond their control” other than sick leave.
Following an appeal to the Court of Appeal, the case has now been referred to the European Court of Justice (ECJ).
The Advocate General’s non-binding opinion in the case was given on 8 June 2017.
The Advocate General thought that, where an employer has not provided a worker with paid leave, the worker’s right to paid leave carries over until he or she has the opportunity to exercise it.
No date has been set for delivery of the full binding ECJ decision.
3. Monitoring employees’ social media
In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.
An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.
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However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.
This case was referred to the ECHR’s Grand Chamber. The hearing took place on 30 November 2016 and a judgment is awaited.
