Employment cases of interest: what's coming up in the courts in 2019?

What are the topics of most interest in 2019? Inevitably, there is some cross-over with legislative developments – most notably with the changes promised by the government's Good Work Plan – but here, we present some broad themes likely to be developed further by the courts in the coming year.

Employment status

Aslam and others v Uber BV and others (Court of Appeal)R (on the application of) IWGB Union v Central Arbitration CommitteeVarious employment tribunal cases

Employment status remains one of the topics of key interest in employment law (see also our report on the government's Good Work Plan).Two years ago, we identified an appeal to the EAT by Uber as one of our cases to follow; last year, we reported that the EAT's decision was to be appealed to the Court of Appeal – and here we are again, expecting the Court of Appeal's decision to be appealed to the Supreme Court. Permission to appeal was granted by the Court of Appeal when it handed down its decision. Although the Court of Appeal agreed by a majority that the Uber drivers were workers, and were working whenever they were in the territory in which they worked, logged onto the app and ready and able to work, one judge did not. We are eager to hear what the Supreme Court will make of these issues.

The IWGB union (which lost its judicial review of the Central Arbitration Committtee's Roofoods Ltd t/a Deliveroo decision last year) is arguing that outsourced workers should be able to engage in collective bargaining with the end-user to whom they supply their services as a joint employer. In August 2018, it was granted permission to judicially review the decision of the CAC not to hear an application by the union on behalf of outsourced cleaners, post room staff and other workers for trade union recognition by the University of London. If successful, this would enhance the rights of outsourced and agency workers.

This time last year, we reported the expected hearing in Boxer v CitySprint. Although only at employment tribunal level, a finding in favour of the claimant would have huge implications for sales of businesses and for outsourcing arrangements and clarity in this area is urgently required.

Andrew Boxer is a cycle courier who won his 2017 claim for worker status against his old employer, Excel. Excel's business was bought by another courier company, CitySprint (itself no stranger to employment status litigation). He now provides services to CitySprint, who say he is self-employed. He argues that, as a worker for Excel, he should have transferred to CitySprint on his previous terms and conditions, since the definition of 'employee' in the Transfer of Undertakings (Protection of Employment) Regulations 2006 is sufficiently wide to include workers. The hearing took place in February 2018 but the result is unknown. For now, employers and companies considering the sales of businesses or outsourcing arrangements should bear in mind the possible risk of claims if workers are found to be covered by the Transfer of Undertakings (Protection of Employment) Regulations.

Meanwhile, the former elite cyclist Jess Varnish is claiming employment status against British Cycling and UK Sport as part of a discrimination complaint. The hearing took place in December 2018.

Two foster carers are claiming worker status (Anderson v Hampshire County Council, Flisher v Kent County Council) although, following the ECJ's November 2018 decision in Sindicatul Familia Constanţa and others v Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Constanţa, the success of those claims is in doubt.

Restrictive covenants

Tillman v Egon Zehnder Ltd

In Tillman, an employment contract contained a post-termination restriction which sought to prevent the employee from being concerned or interested in any competing business for a period of six months from termination, but did not contain an express limitation allowing the employee to hold a minor shareholding in a competing business for investment purposes. The Court of Appeal agreed this was unenforceable and the case will be heard in the Supreme Court in January 2019.

Although the restriction has since expired, the case is important not only to resolve whether the lack of a carve out for minor shareholdings made the covenant unenforceably wide, but also for the finding that parts of a single covenant may not be severed from the remainder to make it enforceable - 'blue-pencilling', or deletions to make a contract enforceable, will only work when there are distinct separate covenants. This was a departure from previous practice.

Suspending employees pending an investigation

Agoreyo v London Borough of Lambeth

The Court of Appeal will hear an appeal in January 2019 against the High Court's decision in Agoreyo, where it was held that the suspension (purportedly to enable a fair investigation) of a teacher accused of having used unreasonable force against children was a repudiatory breach of contract, entitling the teacher to treat herself as constructively dismissed.

Contrary to what some employers believe, suspension is not a neutral act. Employers concerned about an employee's behaviour should document their considerations before deciding to suspend an employee, and where possible do so only when they have an express right to do so in the contract.

Equal pay

Asda Stores Limited v Brierley and othersFenton and others v Asda Stores LimitedCallaghan and others v Birmingham City CouncilSainsbury's Supermarket Ltd v Ahmed and othersBMC Software Ltd v Shaikh

Multi-claimant equal pay cases, traditionally seen most often in the public sector, have hit the private retail sector, specifically supermarkets.

Brierley, a case against Asda, is the best known of these but the other members of the so-called 'Big Four' (Tesco, Morrisons and Sainsburys) are also facing employment tribunal claims from tens of thousands of predominantly female shop floor staff.

In Brierley, the EAT upheld an employment tribunal's decision that a predominantly female group of supermarket retail employees can compare themselves with a mainly male group of distribution depot employees for the purposes of an equal pay claim of work of equal value. The EAT rejected all grounds of appeal submitted by Asda and held that the comparison was permitted under both EU and domestic law. The Court of Appeal heard an appeal in October 2018 and judgment is awaited.

The cases will then return to the employment tribunal to determine whether the supermarket has breached equal pay law.

If the tribunals go on to find that the two groups of workers do work of equal value, and there are no genuine material factors to explain the discrepancy, it has been reported that compensation awarded could run into billions of pounds. As well as back pay, hourly rates would need to be increased in the future.

Retailers have tended to treat store- and warehouse-based staff as different parts of the business, and often warehouse employees (who are more likely to be men) have received better terms, partly due to strong union representation in these types of working environment. There are obvious parallels for other types of businesses – not only those with warehouse and store staff, but for example between other types of online and bricks and mortar retail staff.

Every employment contract contains an implied sex equality clause. In a separate case, BMC Software Ltd v Shaikh, the EAT held that an employer's breach of this clause would not only result in a successful claim for equal pay, but could also be the basis of a constructive dismissal claim. The Court of Appeal is due to hear an appeal in January 2019 on whether the breach could also give rise to a separate claim for sex discrimination.

Whistleblowing

Royal Mail Group Ltd v Jhuti

In Jhuti, the Court of Appeal held that an employee was not automatically unfairly dismissed for making protected disclosures to her line manager, because the person who actually took the decision to dismiss her was not aware of the disclosures. The fairness of the dismissal should, the Court of Appeal said, be judged by what the decision-maker knew, not what they should have known.

Permission to appeal to the Supreme Court was granted in March 2018.

Criminal records checks

R (on the application of P) v the Secretary of State for the Home DepartmentNT1 and NT2 v Google LLC

The Court of Appeal held the revised scheme introduced in 2013 to remove certain old and minor convictions and cautions from disclosure did not go far enough, and a better filter needed to be devised which took into account lapse of time, disposal, timing and nature of convictions before their disclosure. For example, the conviction of a 16 year old for actual bodily harm, 31 years previously, had no relevance to the risk the individual posed to the public. The practicalities of the scheme were for Parliament to decide, the court said.

The Supreme Court heard an appeal in June 2018, but the judgment has not yet been published.

Employers operating in sectors in which standard or enhanced DBS checks are required need to exercise independent judgement on the weight to attach to disclosures, especially where the convictions are old or trivial, in the light of any sector-specific guidance.

Another case, NT1 and NT2 v Google LLC, was heard by the Court of Appeal in December 2018. The High Court had previously found that although the 'right to be forgotten' (here, by search engines being required to de-list links to articles mentioning previous but now spent convictions) applied to less serious crimes, more serious offences did not attract the same rights.

Disability discrimination

Chief Constable of Norfolk v Coffey

In February 2019, the Court of Appeal will hear what is thought to be the first case on perceived disability discrimination.

Ms Coffey was a police constable with hearing loss and tinnitus. Her request to transfer from Wiltshire to Norfolk was refused despite the recommendation of a medical adviser that her hearing levels were stable, just outside the medical standards for police recruitment, and that she should have a practical test as she had had (and passed) before she joined Wiltshire Constabulary. Home Office guidance said that all cases should be considered individually and the EAT held it was perceived direct disability discrimination to refuse her application simply because her hearing was below the national medical standards and might get worse. Whether a person perceives another to be disabled depends on whether they perceived that person to have an impairment under the Equality Act 2010, which includes those relating to progressive conditions.

Agency workers

Kocur v Angard Staffing Solutions Ltd

The Agency Workers Regulations 2010 entitles agency workers to the same basic working and employment conditions after 12 weeks' work as permanent employees. The EAT held in this case that each term should be looked at individually, rather than taking all the conditions as an overall package. The Court of Appeal is expected to hear an appeal in the first part of 2019.

Shared parental leave and pay

Ali v Capita Customer Management Limited

Another issue we flagged this time last year continues into 2019. The Court of Appeal is expected to hear an appeal against the EAT's decision which held that a failure to pay a man on shared parental leave the same enhanced pay as would be paid to a woman on maternity leave was not direct sex discrimination.

Working time

Royal Mencap Society v Tomlinson-BlakeShannon v Rampersad and another t/a Clifton House Residential Home

At the time of writing it is not known whether permission will be granted to appeal to the Supreme Court but given the significance of the case to the nature of what is working time and its importance to employers who require workers to sleep on the premises, it is to be hoped that an appeal will be permitted and heard during 2019.

The Court of Appeal overturned the original decision which was in favour of the individual carer, a sleep-in shift worker who was paid a flat rate of less than the national minimum wage for each shift, during which she had to remain on-site, on-call but could sleep. A successful appeal to the Supreme Court would mean social care employers would have to pay back-pay and penalties to affected staff.

Holiday pay

Flowers v East of England Ambulance Trust

The Working Time Directive requires workers to be paid their normal remuneration for period of annual leave. Since Bear Scotland v Fulton (2015), employers have been required to include compulsory overtime, whether or not guaranteed, in the calculation of holiday pay. However, voluntary overtime is the most common form of overtime in many sectors.

In Flowers, the EAT held that payments made for both guaranteed and regularly worked but voluntary overtime should be included when calculating the first four weeks of a worker's minimum entitlement to annual paid holiday. The Court of Appeal is due to hear an appeal by the employer this year.