Holiday pay - Agnew

The landmark EAT decision of Bear Scotland established that for the purposes of an unlawful deductions from wages claim, a gap of more than 3 months between deductions will constitute a break in the series, effectively limiting the remedy for employees who seek to recover sums from their employer in respect of underpayments or non-payments of holiday pay. While this decision was regarded as surprising and a little hard to understand the logic of at the time, it has since been criticised by commentators as eccentric and possibly wrong. Notably, the Court of Appeal expressed the provisional view in another holiday pay case last year that it doubted the correctness of Bear Scotland on this issue. 

In Northern Ireland, the Court of Appeal in Agnew refused to follow the line taken in Bear Scotland and so a series may be relied upon in that jurisdiction, notwithstanding a break of more than 3 months between deductions. However, the decisions of the Court of Appeal in Northern Ireland are not binding in England, Scotland and Wales so a divergence has opened up. In December, the Supreme Court heard an appeal in Chief Constable of Northern Ireland v Agnew, so we can expect an authoritative clarification of the law in this area imminently. We will have to await the decision itself but it is worth noting that since 2015 there has been a 2-year backstop in respect of unlawful deductions claims based on a series.     

Fire and rehire - Tesco 

The term 'fire and rehire' is often misunderstood. Is it legal to fire someone and then hire them on lesser terms? What constraints are there, if any, on an employer who wishes to do this for economic reasons? Anyone who deals with reorganisations will know that dismissing employees and then offering to re-employ them on less favourable terms and conditions is not a novel proposition and may be done lawfully and fairly. However, there is evidence that the practice has been increasingly used with impunity and last year the Government considered legislating to set limits on the practice. Perhaps because it was too thorny an issue to legislate on, the Government has instead opted for Acas to produce a Code of Practice which will provide for an uplift on unfair dismissal compensation where the Code is not followed. 

In the meantime, Unite the union has been granted permission to appeal to the Supreme Court in relation to the ruling by the Court of Appeal last year which held it was not unlawful for Tesco to dismiss employees in order to bring an end to an enhanced contractual payment that employees were entitled to regard as 'permanent'. The decision of the Court of Appeal was robust in its reasoning so it remains to be seen on what basis the union will now challenge the proposition that an injunction may not be used to prevent an employer from carrying out a dismissal in circumstances where an employer wishes to reduce the terms on offer.  

Bringing forward the termination date where the employee resigns - Fentem

It is relatively common, when an employee resigns, for the termination date to be brought forward by mutual agreement. But when the employer does this unilaterally, exercising a contractual PILON, will this constitute a dismissal and in particular will an employee be able to claim unfair dismissal in those circumstances? In Fentem v Outform EMEA Ltd, the EAT held not, it was still a resignation. Doubt was expressed about the rightness of another EAT decision that was relied on to arrive at that conclusion so it will be interesting to see what the Court of Appeal makes of the case law when the appeal is heard later this year. 

Employment status – HMRC v Professional Game Match Officials Limited

Following the landmark judgment of the Supreme Court in Uber, and with the use of non-conventional employment arrangements being on the rise, employers should note any further developments in case law about employment status. With the Government having made clear that it does not intend to legislate to clarify employment status any time soon, principles from case law remain the guiding light.  

Later this year the Supreme Court will hear another important case about the employment status of football referees, the relevance of which will not be confined to that sector. The focus of that case is likely to be the extent to which mutuality of obligation is relevant, both in relation to any overarching contract and the particular assignment, when determining employment status. 

Dismissal for vexatious grievances - Hope v BMA 

Employees who raise grievances in ill-faith, or who do not properly participate in a resolution, can create a stalemate in the employment relationship. While case law has established that an employee has an implied right to raise a grievance, it is not so clear what duties are imposed on an employee once they have raised a grievance. In Hope v BMA, the EAT held that the dismissal of an employee was fair where he raised multiple various grievances over a year but then failed to progress or withdraw them. The relationship had broken down due to the employee's behaviour and, while his behaviour could not be characterised as gross misconduct, it was vexatious, entitling the employer to dismiss. The EAT noted that it is not appropriate for an employee to set out a shopping list of grievances without showing a will to resolve them. The decision is a rare example of an employer not having to regard multiple grievances as a reason to tread on eggs-shells in its treatment of the employee. An appeal of this case will be heard by the Court of Appeal later this year and it will be interesting to see which issues will be revisited. 

Benyatov v Credit Suisse – duty of care in respect of hazards abroad 

Last year the High Court held that no duty of care was owed to a UK employee who was convicted of a criminal offence when transacting company business abroad in Romania. The argument that his employer owed a duty of care to flag certain risks inherent in transacting business in that jurisdiction failed, as did his claim that he should be indemnified in relation to the ongoing losses of not being able to work again due to the conviction. It would have been remarkable if such a duty had been found to exist. The Court of Appeal heard the employee's appeal in June 2022 and judgment is awaited. Given how many regions in the world may now be classed as 'risky' in some way, employers should watch out for any guidance on the extent to which a duty of care is owed to employees abroad.