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Looking forwards and backwards: key cases of 2019 and which cases to look out for in 2020

Looking Back........

Whistleblowing : Royal Mail v Jhuti

In this case, the Supreme Court found that where a person in the hierarchy of responsibility above the employee determines that the employee should be dismissed for a reason, but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

See also Simpson v Cantor Fitzgerald for a summary of whistleblowing law:

Holiday pay for part-year workers: Harpur Trust v Brazel

In this case, the Court of Appeal confirmed that an employer should not have capped holiday pay at 12.07% of annualised hours for a zero hour contract employee working term-time. Instead, it should have based it on average earnings over the 12-week period immediately before leave is taken, even though this may provide more favourable results for term-time workers when compared to full-timers. The Court of Appeal upheld the EAT’s decision meaning that employers should ensure that they calculate the holiday pay of term-time workers (or “part-year” workers as the Court described them) based on the prior 12 weeks’ average earnings.

Holiday pay and overtime: East of England NHS Trust v Flowers 

The Court of Appeal upheld the EAT’s decision that, despite the absence of a contractual obligation to work voluntary overtime, the employees had a contractual entitlement to have voluntary overtime which they worked taken into account for the purposes of calculating holiday pay. There was therefore no basis for distinguishing voluntary overtime payments from those non-guaranteed overtime payments.

Working Time:Network Rail Infrastructure Ltd v Crawford

 The Court of Appeal ruled that an equivalent period of compensatory rest need not comprise an uninterrupted 20 minutes. The key question is whether the rest afforded to a worker has the same value in terms of contributing to their well-being. There was no reason why two or more breaks amounting to more than 20 minutes could not be as good as one twenty-minute break.

Worker status: Uber BV v Aslam and others

This test case concerns individuals who provide personal services through internet platforms and whether they should enjoy some or all of the rights and protections that come with worker status (section 230(3) ERA 1996).

The Court of Appeal  upheld the lower courts’ findings that Uber drivers in a test case were workers for the purpose of their various ‘worker’ claims including paid holiday leave and therefore entitled to statutory worker protections. The drivers in this case had been incorporated into the business and were subject to its control and were not working on their account. The ET was entitled to find that a driver was working for Uber as a worker when they were in the territory in which they were authorised to work, had the Uber app switched on and were willing to accept work.

See also Stuart Delivery Ltd v Augustine in which the EAT held that a delivery courier was a ‘limb b’ worker:

Inducements relating to collective bargaining : Kostal v Dunkley

In this case Kostal appealed an EAT judgment affirming an ET decision which upheld claims made by 55 claimants who were members of a recognised trade union, Unite the union that each of two offers made to Kostal to its workforce breached their rights under Section 154B of the Trade Union and Labour Relations Consolidation Act 1992.

Section 145B TULR(C)A provides : A worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by his employer has the right not to have an offer made to him by his employer if—

(a)acceptance of the offer, together with other workers' acceptance of offers which the employer also makes to them, would have the prohibited result, and

(b)the employer’s sole or main purpose in making the offers is to achieve that result.

(2)The prohibited result is that the workers' terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union

As this case did not involve the surrender of collective bargaining rights by the workers, the Court of Appeal decided that section 145B did not apply in the circumstances. Otherwise, the Court noted, ‘it would amount to giving a recognised trade union with a collective agreement similar to the one in the present case a veto over even the most minor changes in the terms and conditions of employment, with the employers incurring a severe penalty for overriding the veto’.

The Court outlined two situations where section 145B will apply:

  • where a trade union is seeking to be recognised and the employer makes an offer whose sole or main purpose is to achieve the result that the workers’ terms will not be subject to a collective agreement; and
  • where an employer makes an offer to end collective bargaining for some or all terms on a permanent basis.

It rejected a third situation, as in this case, where the employer makes an offer which results in one or more terms on one occasion not being determined by collective agreement. This is because union members were not being asked to relinquish their right to be represented by their union in the collective bargaining process and have their terms and conditions negotiated by the union in the future. All that had happened was that the employer had gone directly to the workforce and asked them whether they wished to agree particular terms on this occasion. In such circumstances, a union still has options open to them, including opposing the change by calling an industrial action ballot.

The union is applying for leave to appeal to the Supreme Court.

Disability and progressive condition: Chief Constable of Norfolk v Coffey

The Court of Appeal upheld the decisions of the ET and EAT and confirmed that the appropriate legal definition of ‘disability’ extends both to an individual perceived to be currently disabled and to those who are currently perceived to have a progressive condition likely to result in disability at some point in the future. As such, refusing employment because of a belief that an individual has a progressive condition that will deteriorate falls within disability discrimination.

Covert surveillance: López Ribalda v Spain

This appeal to the ECtHR concerned a decision to dismiss based on video-surveillance which, it was argued, was implemented in breach of the individuals’ right to respect for their private life, as guaranteed under Article 8 of the European Convention on Human Rights (ECHR).

The ECtHR found that there had been no breach of employees’ right to privacy when their employer used covert CCTV in the workplace. The use of CCTV had been justified by the employer’s reasonable suspicions and was appropriate for the legitimate aim of detecting theft.

See also Phoenix House Ltd v Stockman

Suspension and disciplinary proceedings: Mayor and Burgesses of London Borough of Lambeth v Agoreyo

Considering Malik v Bank of Credit and Commercial International SA [1988] AC20 the Court of Appeal held that an act of suspension can constitute a breach of the implied term of trust and confidence where it is made in a manner likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

See Dronsfield v The University of Reading in which the EAT held that an house solicitor’s amendment of investigation report did not taint the fairness of dismissal:

Restrictive covenants: Tillman v Egon Zehnder

In this case, the Supreme Court found a contractual restriction seeking to limit an ex-employee from ‘engaging, being concerned or interested in’ any competing business was too broad and an unreasonable restraint of trade. However, the Supreme Court was willing to sever the offending words ‘interested in’, leaving an enforceable non-compete clause which the former employee could rely on.

Although not relevant to the court’s finding, the Supreme Court confirmed that previous case law supports the view that the words ‘concerned in’ denote working for a business or having some other active involvement in it, not to a mere passive holding of minority shares. On that basis those words did not need to be similarly removed from the contract.

Privilege: Shell International Limited v Curless

Now sometimes referred to as the ‘Curless Whisper’ case when Mr Curless overheard discussions between lawyers in a pub about his own dismissal. The case is a useful exploration of the limits of legal advice privilege (LAP). The Court of Appeal considered whether LAP should be disapplied in relation to advice which is allegedly iniquitous (i.e. deliberately dishonest). The advice (in an email headed ‘legally private and confidential’ advised  on the wider reorganisation of the group but referred to possibly including Mr Curless in that reorganisation, making him redundant with the attendant risks (he had already brought extant claims against Shell). The Court of Appeal held that this was advice that lawyers gave day in and day out; this was not advice to act in an underhand way. Further, the pub conversation could not be relied upon as an aid to interpretation. The email advice preceded the conversation by two weeks; there was no evidence the individual overheard had seen the email and the email advice could not be tainted by gossip after the event.

See also Kasongo v Humanscale UK Ltd in which the EAT held that the employer could not cherry pick privileged advice:

Looking forward.......

Discrimination/ sexual orientation:

Lee v Ashers Baking Company Limited is being considered for admissibility to be heard by the ECtHR which, if admissible, will determine whether it was directly discriminatory on the grounds of sexual orientation for Ashers Bakery to refuse to bake a cake for the customers with the words ‘Support Gay Marriage’.

In November we reported on the Advocate General’s Opinion in Associazione Avvocatura per i diritti LGBTI in which the A-G gave his opinion that homophobic comments made on the radio by a senior lawyer to the effect that he would not hire a homosexual person to work in his law firm were capable of falling within the scope of unlawful discrimination. The hearing date before the ECJ is awaited.

Equal pay:

The equal pay claims brought by workers in retail stores (comparing their terms with those of staff in offsite distribution depots) against Asda in Asda v Brierley will be heard by the Supreme Court; hearing date is awaited.

Shared parental pay:

The Supreme Court will hear the appeal in Ali v Capita Customer management/ Hextall v Chief Constable of Leicestershire Police on the issue of whether it was directly or indirectly discriminatory not to pay male employees enhanced shared parental pay.

Worker status:

See Uber BV v Aslam above. This case will be heard by the Supreme Court in July 2020.

Breach of implied terms: 

The Court of Appeal heard the appeal in Awan v ICTS UK Ltd in December 2019; judgement awaited. In this case, it was held that it was a breach of an implied contractual term to dismiss an employee whilst he was contractually entitled to long term disability benefits.