In a year where fake news became the norm, it was nonetheless another interesting year for employment law. As eagerly awaited as a portly jolly man entering your premises via your chimney on 25 December, it is now time for my annual top 5 countdown of the most important employment law cases 2017 had to offer.
In reverse order:
5. Chesterton Global v Nurmohamed (Court of Appeal)
This case was one of our “ones to look out for” in 2017. Here the Court of Appeal (COA) had to decide if an individual complaining about circumstances affecting his (and other employees') contracts could classify as being “in the public interest”. The public interest requirement was brought into legislation in 2013 to specifically stop claimants utilising disclosures about their own contracts to bring Whistleblowing claims.
The COA ruled Mr Nurmohamed’s disclosure did amount to whistleblowing and helpfully identified how the courts, and in turn businesses, should identify such allegations in the future.
Our full breakdown of the case is available HERE
4. Donelien v Liberata UK Ltd (EAT)
It is not often that a case that has for so long flown under the radar makes it into my top 5 of the year, but Donelien has done just that. This case may prove a saviour for businesses defending disability discrimination claims.
Ms Donelien had 11 years’ service with Liberta and had a significant amount of time off through various illnesses including work related stress. Prior to her dismissal for attendance reasons in 2009, Liberta ordered an occupational health report which was inconclusive. After returning to the occupational health provider for extended answers, the company were no further forward. Following return to work meetings, the company concluded that Ms Donelien was not disabled and dismissed.
The ET and EAT both concluded that Liberta did not have knowledge or “ought to have had knowledge” that the claimant was disabled. Both tribunals decided that, when viewed as a whole, the employer had taken sufficient (even though not exhaustive) steps and made reasonable efforts in order to avoid gaining constructive knowledge of any disability.
The case has been appealed to the Court of Appeal and the judgment is awaited. We will provide our comments as and when it is released.
3. Ali v Capita Customer Management Ltd (ET)
When the Shared Parental Leave (SPL) regulations were introduced in April 2015, we questioned whether a failure to provide enhanced SPL to men when women would be entitled to enhanced maternity leave would leave a business open to a sex discrimination claim. This was answered in the above employment tribunal claim in which Mr Ali was successful in arguing this point.
As this is only a first instance employment tribunal case it is not binding on employers as of yet. In our review of the case, released immediately following the judgment, we suggested that the ruling may be appealed. It was and the appeal was heard just before Christmas. We expect a judgment to be released early this year.
Our full review of the employment tribunal case can be read HERE
2. King v Sash Windows Ltd (ECJ)
The last holiday pay case of the year turned out to be a big one. The European Court of Justice (ECJ) ruled against Sash Windows Ltd stating, amongst other things, that Mr King could claim back 13 years’ worth of holiday pay that he had been unable to take owing to being wrongly classified as self-employed.
The ruling by the ECJ goes directly against the wording of two pieces of UK legislation and it will be interesting to see how the Court of Appeal deals with it when it returns for hearing in 2018.
Our full article on the case can be found HERE
And the winner is….
1. R (on the application of Unison) v Lord Chancellor (Supreme Court)
There can be no doubt about this year’s winner. It has to be the case of R (on the application of Unison) v Lord Chancellor. This case in which employment tribunal fees were finally deemed unlawful takes our coveted top spot for 2017.
The judgment, which at the time we classed as the “single biggest intervention by the courts in Government policy in recent memory” was critical of the Government’s implementation of the fee scheme and ruled that it not only blocked access to justice, but was also discriminatory towards women.
As a result of the scrapping of the fees, employment tribunal claims have risen 66% and the Government have set aside £27m to refund individuals who were required to pay such fees.
Our immediate comments on the judgment can be read HERE
And so to 2018…..
With 2017 out of the way, what can we expect to see in 2018?
First off, we have a number of important judgments from 2017 outstanding, namely Ali v Capita Customer Management Ltd and Donelien v Liberata UK Ltd (EAT) which we have discussed above.
We also expect to see high some profile cases of worker status return to the higher courts, with Uber coming back for more. They are currently awaiting a Court of Appeal date which will likely be in the middle of the year. Pimlico Plumbers will have one last bash in the Supreme Court at trying to overturn the finding that Mr Smith was a worker. We expect that to be heard in February 2018.
Those with an interest in TUPE will also be excited (if you can get excited about TUPE) to finally get a decision from the ECJ on whether a six month gap between providers can constitute a transfer (Sigüenza v Ayuntamiento de Valladolid). We expect that judgment early in the new year.
Can an individual be protected from pregnancy discrimination, even before she tells her employer she is pregnant? The Advocate General of the ECJ says yes, but we will have official confirmation early in 2018 (Porras Guisado v Bankia SA).
Focus Care Agency v Roberts is due to be heard in the Court of Appeal in March 2018. The judgment should confirm the correct approach to determine whether employees, who sleep-in as carers in order to carry out their duties, engage in "time work" for the full duration of the night shift or whether they are only entitled to the national minimum wage when they are awake and working.
Aside from case law, the Government are set to have a busy year with a raft of new legislation being pushed through pre-Brexit.
New rules regarding termination payments are expected in April 2018 with the loophole on PILON payments rumoured to be closing.
Also in April 2018, childcare vouchers will become a thing of the past and employers will need to be ready to answer employees’ questions regarding the same.
GDPR is coming in May 2018. It is probably the single biggest change to our laws coming through in 2018. It will affect every business in the UK and it is vital that you are familiar with it. Luckily we have produced a “Brilliantly Simple Guide to GDPR” which can be read HERE
Finally, and whisper this, there are mutterings that Employment Tribunal fees may just return. More on that as and when we hear further.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.