Brexit
R (Gina Miller and Deir Tozetti Dos Santos) v The Secretary of State for Exiting the European Union
Whilst the implications of Brexit on employment law are uncertain, the ongoing legal challenge to Britain’s vote to leave the EU is possibly the most significant case to be determined in 2017.
The High Court held that the Royal prerogative did not empower the government to give notice pursuant to Article 50 of the Treaty on European Union (TEU) that would initiate the UK’s withdrawal from the EU. The government would only be able to do so by way of an Act of Parliament. The Government appealed to the Supreme Court and the case was heard in December 2016.
The Supreme Court’s judgement will determine the UK’s process for leaving the EU.
Employment status
Pimlico Plumbers Ltd v Smith
The Employment Appeal Tribunal (“EAT”) found that the plumbers in this case were workers, not employees. It held that the employment tribunal had correctly taken into account the degree of personal financial risk taken by the plumber in this case and the fact that both parties’ actions and the contractual documentation showed that they considered the plumber to be self-employed. Pimlico appealed to the Court of Appeal.
The Court of Appeal is due to hear this case in January 2017 and consider the test for employment status.
Aslam and others v Uber BV and others
In one of the landmark cases of 2016, an employment tribunal held that Uber drivers are workers rather than self-employed. Uber is appealing this ruling. Tribunal judgments are also expected in relation to four similar cases brought by cycle couriers and a decision is awaited from the Central Arbitration Committee regarding the Independent Workers Union of Great Britain’s application for recognition by Deliveroo. These decisions are likely to have a significant impact on the growing “gig economy” in the UK.
As can be seen from the Uber decision, tribunals appear to be approaching these cases pragmatically, despite contractual arrangements suggesting that individuals are genuinely self-employed.
Direct Discrimination
The Court of Appeal will be considering the following cases:
Bougnaoui v Micropole Univers
The Advocate General’s opinion stated that an employee's dismissal for wearing an Islamic headscarf at work, in breach of direct instruction, was directly discriminatory on the grounds of religion or belief.
Achbita v G4S Secure Solutions
The Advocate General opined that it was not direct discrimination to ban the wearing of a Muslim headscarf when there is a policy of neutrality (the employer had a policy prohibiting employees from wearing outward signs of political, philosophical or religious beliefs at work).
Indirect Discrimination
Home Office (UK Border Agency) v Essop and others; joined by Naeem v Ministry of Justice
The Supreme Court will consider whether a claimant bringing an indirect discrimination claim needs to establish that the application of a provision, criteria or practice has caused their personal disadvantage, not just a group disadvantage, and the reasons why it causes that disadvantage. The outcome of this case may create a higher hurdle for claimants to succeed with indirect discrimination claims.
Whistleblowing
Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed
The Court of Appeal will consider an appeal regarding the number of people that have to potentially be affected by a protected disclosure for it to meet the “public interest test”.
In 2013, changes were made to whistleblowing legislation to prevent whistleblowing claims being brought in relation to alleged breaches of claimants’ own terms of employment. Since then, claimants need to show that they had a reasonable belief that their disclosure was “in the public interest”. Hopefully, the Court of Appeal will provide guidance so that, in future, claimants are fully aware of the extent of the requirements to satisfy the “public interest” criteria.
Employment Tribunal fees
R (on the application of Unison) v Lord Chancellor
Fees were introduced in the employment tribunals and EAT on 29 July 2013. Unison challenged the lawfulness of the introduction of the fee regime in the High Court, which was subsequently dismissed. Unison then brought the case to the Court of Appeal, which dismissed the appeal on the basis that there was no safe legal basis for a finding to support Unison’s submission that tribunal fees were making it impossible or excessively difficult for numerous claimants to enforce their rights.
The case will be heard in the Supreme Court in March 2017.
Holiday pay
Lock v British Gas Trading Ltd
The Supreme Court is expected to hear this case in 2017. It will need to determine whether the UK’s Working Time Regulations (“WTR”) can be interpreted in accordance with the European Directive on working time and require employers to take into account commission and similar payments when calculating holiday pay.
If the case is decided in British Gas’ favour, it may open floodgates and encourage other employers to raise similar challenges regarding inclusion of overtime and other benefits in holiday pay.
