When the history books are written about the year that was 2016, employment law is unlikely to feature anywhere near the top. From losing some of the best entertainers in the world, to Brexit to the appointment of Donald Trump to the White House, you would have been forgiven for missing out on an Employment Tribunal case coming out of Croydon ET.
Below I cover my top 5 cases from the year and look forward to what we can expect in 2017. So, in reverse order:
5. British Gas v Lock and another (Court of Appeal)
What is a year in review without a case on holiday pay? This year the Court of Appeal confirmed the judgment from the EAT and ECJ and stated that contractual results based commission must be included in holiday pay. This dispute will rumble on again with an appeal to the Supreme Court already filed.
4. Phoenix House Ltd v Stockman and another (EAT)
In this case the Employment Appeal Tribunal (EAT) was asked whether the Acas Code of Practice on Disciplinary and Grievance should apply in cases of an SOSR (Some Other Substantial Reason) dismissal. The code itself is silent on the matter, hence the confusion amongst practitioners. The EAT ruled that the code applies to conduct and performance only and therefore employers need not follow the code for SOSR dismissals. Earlier in the year, the EAT confirmed that the code will not apply to dismissals for genuine ill health, where there is no issue of poor performance.
3. Snell v Network Rail (ET)
When shared parental leave first arrived, commentators, including yours truly, queried the potential discrimination effect in relation to employers who offered enhanced maternity pay. Would failure to offer men the same enhanced benefit during shared parental leave be seen as discriminatory? The case was heard before the Employment Tribunal in August 2016. It was accepted that Network Rail’s policy amounted to indirect sex discrimination. Our commentary on the judgment can be read here.
2. G4S Cash Solutions (UK Ltd) v Powell (EAT)
The EAT raised eyebrows in September by ruling that an employer should have maintained an employee’s higher rate of pay when a disabled employee was moved to a more junior role. The EAT found that in the facts of this particular case it was as a reasonable adjustment to do so. The EAT were quick to point out that every case would rest on its own facts.
And the winner is……………….
1. Aslam and others v Uber (ET)
Despite only being a first instance ET decision, the “Uber case” is my winner of this year’s employment law case of the year. The employment status argument has been rumbling on for many years and this judgment has brought the subject to the front pages of the national papers. Our full review of the case can be found here.
And so to 2017…
What do we have to look forward to in 2017? Taking into account the financial repercussions of some of the judgments in 2016 it is highly likely that at least two of the cases mentioned above will re-appear in similar lists at the end of next year.
First up we have the Uber appeal. Given their business model, Uber could not simply accept the decision of the ET and an appeal was launched on 13 December to the EAT. The hearing should take place in mid-2017.
British Gas is going for one last roll of the dice and has appealed to the Supreme Court in their battle over holiday pay. No date has been set yet for what will hopefully be the final episode in this long running saga. We don’t see the appeal being successful.
The case of Chestertons Global v Nurmohamed will reach the Court of Appeal in June 2017. The case will consider the definition of “public interest”. This is a case awaited by many commentators in employment law and will hopefully give us clarity on what whistleblowing disclosure counts as being in the public interest. Can a section of workforce (such as group of workers) be the ‘public’?
Chris Aldridge talked in detail about the Archbita and Bougnaoui cases (two conflicting European cases heard by Advocate Generals on banning religious dress in the workplace) at our CIPD event in October 2016. The ECJ is likely to hear both cases this year and decide which Advocate General was right. The outcome is likely to have significant legal and political consequences for the UK and Europe.
And of course we have Brexit. Due in January 2017, the Supreme Court will give its judgment on whether the Government alone has the power to invoke Article 50. A further defeat for the Government could bring us perhaps the biggest irony of 2017, a trip to the European Courts of Justice for guidance.