What were the most significant employment case law decisions in 2016? Stephen Simpson counts down the 10 most important judgments for employers this year.
Key judgments in 2016 include cases on: employment status in the gig economy; enhanced shared parental pay; childcare vouchers during maternity leave; holiday pay calculations; and the Acas code on discipline and grievance.
10. Can an employer require an employee to divorce, in order to keep a job?
More religion cases
This was one of the most controversial employment decisions of 2016.
The Employment Appeal Tribunal (EAT) held that the dismissal of a teacher, who is Christian, because of her refusal to end her marriage with a convicted sex offender was religious discrimination.
The EAT surprisingly suggested that a person of faith who believes in the sanctity of marriage can be placed at a “particular disadvantage” if the employer requires him or her to end a marriage with a convicted sex offender.
This is unlikely to be the last employment case in which an employer has to weigh up whether or not to dismiss an innocent employee who works with children because of a third party’s wrongdoing (such as a relative’s conviction for sex offences).
9. Misconduct dismissal for “pulling a sickie”
This case does not say anything that the seasoned HR professional will not already know about dealing with a malingering employee.
However, the case provides a valuable recap for employers that suspect an employee is faking illness.
The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue.
This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.
8. Immigration status does not equate to nationality
The wide reach of race discrimination laws has been a lively employment law issue in the last few years.
For example, it is now accepted that someone’s “caste” does come within the definition of race under the Equality Act 2010.
However, the Supreme Court in Onu shied away from extending the definition any further.
The Supreme Court held that the mistreatment of two migrant workers on the basis of their immigration status did not amount to race discrimination.
This case could take on added significance in the next few years if employers find themselves having to dismiss workers who lose the right to work in the UK because of Brexit.
7. Employers must take active steps to provide rest breaks
This working time case examined the scope of the important right for workers to take a rest break.
The case essentially asked: is a worker required to ask for rest breaks, and be refused, before he or she can bring a working time claim in the employment tribunal?
The EAT made it clear that employers have an active duty to ensure that workers are able to take a 20-minute uninterrupted rest break for every six hours worked.
According to the EAT, it does not matter if the employee has appeared to acquiesce to an arrangement that prevents him or her taking a break.
An employee in this position can still bring a working time claim.
More disability cases
6. Pay protection can be a reasonable adjustment
What happens to the pay of a disabled employee who is moved to a new role because he or she is unable to continue in an old role?
In Powell, a maintenance engineer developed back problems and retained his existing terms and conditions, but moved to the lesser role of “key runner”.
However, a dispute arose after his employer said that it would only keep the role, which it said was designed to be temporary, if he agreed to a reduction in pay.
In the engineer’s subsequent disability discrimination claim, the EAT accepted that, while not an “everyday event”, there is no reason why pay protection cannot be a reasonable adjustment as part of a package of measures to get an employee back to work.
5. EAT limits scope of Acas discipline and grievance code
Another case on the Acas code
The “Acas code of practice on disciplinary and grievance procedures” applies where an employer is disciplining or dismissing an employee for misconduct or poor performance.
But the application of the Acas code is not so clear cut where the reason for the action falls within “some other substantial reason” for dismissal. For example, what if an employee is dismissed because of a “breakdown in working relationships”?
In Stockman, the EAT held that employers do not have to follow the Acas code where there is “some other substantial reason” for dismissal.
This decision is controversial because it appears to conflict with the EAT decision in Lund v St Edmund’s School, Canterbury.
This conflict means that it is only a matter of time before we see another case on the application of the Acas code where there has been a breakdown in trust and confidence.
4. Holiday pay must include commission
More annual leave cases
No employment law year would be complete without a case about the calculation of holiday pay.
In Lock, the Court of Appeal followed the trend in recent years by accepting that holiday pay must include more than just base pay.
In this case, the Court of Appeal concluded that the Working Time Regulations 1998 can be interpreted to require results-based commission to be included.
British Gas is expected to appeal the decision one last time to the Supreme Court.
3. Childcare vouchers during maternity leave
This decision back in March required employers to examine how their childcare vouchers scheme handles maternity leave.
HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.
Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.
The employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT.
The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.
According to the EAT, the position is different if childcare vouchers are provided in addition to the employee’s salary. If this is the case, they are a benefit and must continue during maternity leave.
2. First tribunal decision on shared parental leave
Shared parental leave
There was a great deal of excitement (and trepidation) among HR professionals when news broke in early October of the first employment law decision on shared parental leave.
When shared parental leave was introduced, one of the biggest concerns was how much employers that enhance maternity pay should pay those on shared parental pay.
The general consensus was that employers that enhance maternity pay but not shared parental pay could be risking a sex discrimination claim from a man.
Network Rail went one step further by differentiating between the mother and partner in the provision of enhanced shared parental pay.
The employment tribunal concluded that paying a male Network Rail employee only the statutory minimum shared parental pay, while his wife (also a Network Rail employee) received full pay, was blatantly discriminatory.
The case cost Network Rail over £28,000, prompting nervous HR professionals up and down the land to check their own shared parental leave policies.
And the number one employment law case of 2016 is…
The highest-profile employment case of 2016 was undoubtedly this successful bid by Uber drivers to be recognised as “workers” and not self-employed.
While the case is not binding and is likely to be appealed, it is the first in what will be a line of cases dealing with employment status in the gig economy.
The employment tribunal accepted without hesitation that the drivers are workers, giving them access to some employment rights such as to receive the national minimum wage and be paid annual leave.
In its extraordinary judgment, the employment tribunal severely criticised Uber for the lengths it went to mask the true nature of its relationship with its drivers.
Despite the one-sided nature of the decision, Uber is expected to appeal to the EAT.