Supreme Court cases

Employment status - HMRC v Game Match Officials 

Employment status cases are never far from the spotlight at the moment. Although concerned with the employment status of football referees for tax purposes, the Game Match case will be of wider interest for what it has to stay about the concepts of mutuality of obligation and control. The Court of Appeal found the lower tax tribunals to have erred in their approach when concluding that referees were not employees but the Supreme Court heard an appeal against the Court of Appeal's judgment in June 2023. Judgment is awaited. Notably, the Court of Appeal held that the ability of either side to terminate the arrangement before the start of each match did not negate mutuality of obligation. Also, the question of whether there was an overarching contract between engagements did not determine the distinct question of whether there was an employment relationship for single matches. 

The need to look at all the circumstances is a familiar mantra to anyone grappling with status issues. However, since Uber and Pimlico Plumbers in particular, employers are on the look-out for bright lines set down by the court which clarify which factors and distinctions are key and when departures are likely to be made from the usual principles. 

Fire and rehire - USDAW v Tesco 

Given how robust the Court of Appeal's judgment was on the issue of whether an injunction should be granted to prevent Tesco dismissing warehouse staff (answer, no, as reported in a previous issue of LAW [LINK]), it is surprising to see this case returning to the Supreme Court in January. The Court of Appeal restored the 'orthodox position' (departed from by the High Court), finding that there was no basis for implying a term that notice to dismiss would not be given to defeat employees' rights to an enhanced pay element negotiated around a decade ago. The principle that an implied term will rarely trump an express term (in this case, the right to dismiss) will be hard to depart from. If the appeal is successful, this will represent a significant shake-up in this area and will go against the grain of what we understand to be the employer's wide discretion when it comes to dismissing staff, also in terms of what we understand about when injunctive relief will be granted.

Trade unions - Mercer 

Currently, distinct statutory provisions within TULRCA 1992 protect workers from detriment and dismissal, differentiating between times when workers are involved in trade union activities and times when they are participating in a strike. The Court of Appeal decided that section 146 of TULRCA (concerning detriments for trade union activities), did not cover strike action and it was not incompatible with article 11 of the Human Rights Act 1998 to construe section 146 in this way. The Supreme Court heard an appeal on this issue in December 2023 and judgment is awaited. 

Religion and Belief discrimination cases in spotlight

We have come a long way since Grainger set out the conditions for when a belief akin to religion will be protected in the workplace. A combination of ideology in the workplace taking up more of a prominent role and individuals becoming more vocal on social issues means that the scope for clashes between employees has never been greater. Forstater clarified that the bar is high for when a belief will be disqualified from protection due to not being worthy of respect in a democratic society. This year, we will see some interesting cases on belief discrimination going to appeal.

Bailey v Stonewall 

Allison Bailey won her case that Garden Court Chambers had discriminated against her on grounds of her gender-critical beliefs but did not succeed in showing that Stonewall's actions, in particular its communications to Garden Court Chambers complaining about her statements and actions, amounted to an inducement to discriminate. The EAT will consider Ms Bailey's appeal later this year. 

Randall v Trent College EAT 

Was it correct, as an employment tribunal held, that a school chaplain who made a sermon expressing views against LGBT inclusivity, was not treated the way he was because of his beliefs but rather because of his objectionable manifestation of them? The line between a belief and its objectionable manifestation is a difficult area when it comes to entrenched and vehemently held views so it will be interesting to see what the EAT says on this issue.