2019 will go down as a year once again dominated by high street closures, Brexit extensions and elections. It was not all doom and gloom however as our football teams, both male and female put up fantastic showings on the continent and awareness in climate change and single use plastic became news headlines the world over thanks to the work of people like Greta Thunberg and David Attenborough.
It will be a year to remember also for employers with a large increase in employment tribunal claims, the rise of awareness from employees on subject access requests and a number of changes to internal procedures brought on by judgments in our Courts and Tribunals.
All in all, it has indeed been another interesting year for employment law. With less than four weeks until the fat jolly man comes down your chimney, and with no major judgments on the horizon for the rest of the year, below is my top 5 countdown of the most interesting employment law cases 2019 had to offer.
In reverse order:
5. Should you delay a disciplinary process during a criminal investigation?
Whilst an extremely interesting case, I have included this Court of Appeal judgment purely on the amount of enquiries we have had on the subject throughout the year. In this case, the CoA looked at whether proceeding with a disciplinary procedure could be deemed a breach of trust and confidence and what a reasonable employer should do in such circumstances.
4. Change to holiday pay calculations for term time workers
Just when you thought the arguments over holiday pay had finished, up pops the Court of Appeal case of Brazel v The Harpur Trust. Ms Brazel was a term time worker. As is common practice for employers with employees on part year/term time contracts, calculation of annual leave was calculated on a 12.07% basis. The Court of Appeal (CoA) has held that such a calculation may result, in some instances, in employees not receiving their correct holiday accrual and therefore depriving them of correct annual leave entitlement. The CoA’s judgment confirmed that annual leave should be calculated on the normal 5.6 weeks basis, based on the preceding 12 weeks’ pay. It was accepted by the CoA that this may result in part year workers receiving more holiday than their colleagues, however, whilst this was unfortunate, it was the only way to ensure part year workers received their full entitlement.
3. Can you discriminate against vegetarians?
In October 2019 I covered the Employment Tribunal case of Conisbee v Crossley Farms Limited in relation to the philosophical belief of vegetarians. The bulletin also serves as a good reminder of the test for satisfying a philosophical belief.
2. Shared parental pay – should it mirror enhanced maternity pay?
My colleague Chris Aldridge covered an EAT case in June 2019 on whether it was discriminatory to offer enhanced maternity pay whilst keeping shared parental pay at the statutory level.
1. Tribunals can now look at “hidden reasons” for dismissal
Straight in at the number one spot is the Landmark November 2019 case of Royal Mail Group v Jhuti which considered whether a tribunal could look beyond the dismissing officer’s mindset and explore hidden reasons for dismissal.
So there you have it, my most interesting case of 2019 is the final big case of the year, Royal Mail Group v Jhuti. A nod must be given to London Borough of Lambeth v Agoreyo, a case which provides some fantastic guidance on when you should and should not suspend an employee, and also López Ribalda and others v Spain (ECHR) which gave us some clarity on covert CCTV in the workplace. If you need more information on either of these cases, drop me an email at firstname.lastname@example.org.
What to look for in 2020
Whilst I could repeat my long running joke that I don’t have 2020 vision *boom- tish*, there are a plethora of changes and important cases being lined up already for 2020.
A lot of the statutory changes in 2020 will depend on which party is successful in the 12 December elections. What we do know however, is that the following changes are due to take place:
- Written statements of employment (with additional information) from day 1 of employment.
- Parental bereavement leave and Pay – 2 weeks leave if employee loses a child under 18.
- Abolition of Swedish Derogation (Agency Workers)
- Holiday pay calculations – reference period to increase from 12 weeks to 52 weeks.
- Royal Mencap v Tomlinson Blake – Supreme Court to have final say on sleep in shifts on 12-13 February 2020.
- Dewhurts v Revisecatch & City Sprint – Are “workers” and not just employees entitled to the benefits of TUPE? The ET thinks so, what will the EAT decide? Date TBC.
- Lee v Ashers Baking Co Ltd and others - The “gay cake” case. Can a cake even be gay? The European Court of Human Rights will likely tell us in 2020.
- Morrisons Supermarket – Are Morrisons supermarket vicariously liable for the data leak of approx. 5000 staff? The case was heard in November 2019 but we are still awaiting a decision. The Supreme Court will likely release this in the first quarter of 2020.
- Asda v Brierley – a huge equal pay claim that will have ramifications for the majority of UK supermarkets and those who operate warehouse to retail operations. Are workers in retail stores comparable to warehouse workers? The Supreme Court will likely hear this in the second half of 2020.
- Ali v Capita Customer Management Ltd; Hextall v Chief Constable of Leicestershire Police – Number two in our cases of the year, this one has been appealed to the Supreme Court and we are awaiting a listing in 2020.
- Uber BV v Aslam – In a case that seems to have lasted longer than the Brexit debate itself, we may finally get an answer to the saga of whether Uber drivers are workers and not self employed. Supreme Court have this one listed for 22-23 July 2020.
- Awan v ICTS – this is one we are keeping an eye as it has the potential to affect a lot of our clients. Is it a breach of an implied term to dismiss an employee on long term sick who has the benefit of PHI scheme for sickness benefits? The EAT says it is, now its for the Court of Appeal to decide. This is actually due to be heard in the next few days (4-5 December 2019) but we may not get the decision immediately.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.