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Education briefing - Key cases for 2021

  • United Kingdom
  • Education - Briefings

22-01-2021

The COVID-19 pandemic has exacerbated delays with employment tribunal claims and affected the speed of appeal decisions in the higher courts, issues which will persist in 2021. New litigation and increased case numbers are also expected.

As the new year begins, we highlight below some key cases for HR practitioners and in-house employment lawyers. We have divided these between cases in which judgment is pending and those in which a significant issue is listed for hearing during the year.

These include the Kostal appeal which will be of particular interest to education institutions given that it concerns the circumstances in which an employer has the ability to change terms and conditions of employment without collective agreement.

The final instalment in several significant cases is also looming in the coming months. A decision in the long-running worker status case involving Uber is much awaited and will clarify many pertinent factors of status determination from a legal perspective. However, such cases turn on their particular facts, so broader arguments relating to employee, worker or self-employed status are unlikely to be resolved without legislation (as proposed in the Good Work Plan). Also, employers can expect further clarification over the often complicated issues relating to the calculation of holiday pay, with three important cases listed for hearing this year.

We are also awaiting some note-worthy decisions in relation to the Equality Act 2010, dealing with the burden of proof and the relationship between different protected characteristics.

Appeal judgments pending

Worker status: the question of whether two Uber drivers were “workers”, and therefore entitled to holiday pay and to be paid at least the national minimum wage while working, was heard by the SC in July 2020. If the pending SC decision upholds the CA’s finding in favour of the claimants, it may encourage other individuals to argue that their employment status has been misclassified. Any institutions who currently engage individuals on a “non-employed” basis are advised to conduct a review and risk assessment if they have not already done so. Uber BV and others v Aslam

Religious beliefs: in 2019 the EAT found that a lay magistrate, who is a practising Christian, had not suffered victimisation when he was removed from office after publicly expressing disapproval for same-sex couple adoptions. The claimant’s appeal against this decision was heard by the CA in November 2020 and the judgment is expected to offer further analysis of the appropriate response for employers when there is an apparent clash between protected rights. Page v Lord Chancellor/Secretary of State for Justice and another

Statutory trade union recognition: the IWGB sought statutory trade union recognition for a group of outsourced workers, not only with their actual employer, but also with the organisation for which the outsourced services were being performed (which they argued was the workers’ “de facto” employer). The CAC rejected this application, deciding that workers may collectively bargain with their direct employer only. The CA heard IWGB’s appeal against this ruling in November 2020 and its decision on this important issue is awaited. IWGB v CAC

 Appeals listed for hearing

Statutory trade union recognition: another IWGB case appeal, listed in the CA for February 2021, concerns the refusal of IWGB’s application to be recognised for collective bargaining by Deliveroo on behalf of a group of delivery riders. A previous judicial review of the CAC’s decision held that restricting statutory recognition rights to ‘workers’ providing personal service under UK law was justified and proportionate. As the riders were self-employed contractors, not ‘workers’, they fell outside the statutory recognition regime. IWGB v CAC

Initial burden of proof of discrimination: in discrimination claims, the settled principle is that claimants bear the initial burden of proof, that is, to produce sufficient evidence upon which to base a claim of discrimination. However this principle was called into question when this case appeared before the EAT. Although the CA reasserted the established view that onus lies initially with claimants, in March 2021 the SC is due to hear a further appeal which should provide vital clarification on this issue. Efobi v Royal Mail Group Limited

Collective agreement rights: education institutions will be interested in the outcome of this appeal which is due to heard by the SC in May 2021. Previously, the CA ruled it was not a breach of s145B TULRCA for the employer to change employment terms outside of a collective agreement, provided there was no intention to ask members to relinquish their right to be represented by their union in the collective bargaining process.

Read our previous briefing: Kostal UK Ltd v Dunkley

Backdated holiday pay: in June 2021, the SC will hear the appeal against a decision of the NICA, which held that a "series" of unlawful deductions from holiday pay would not be interrupted by gaps of more than three months. If the SC agrees with the NICA decision, significant liability for backdated holiday pay claims could arise for all employers. However, the effects could be particularly felt in Northern Ireland where a statutory two-year backstop on the ability to claim, applicable in GB, does not apply.

Read our previous briefing: Chief Constable of the Police Service of Northern Ireland v Agnew

Holiday pay for term-time workers: the SC will be asked to review, in November 2021, what amounts to appropriate holiday pay for term-time workers and to decide whether the CA was correct to rule that a 12.07% cap upon annualised hours was unlawful. The outcome of this appeal will be of particular interest to education institutions as it will have implications for those workers who have no normal working hours - particularly for those who work on a term-time basis or intermittently throughout the year.

Read our previous briefing: Harpur Trust v Brazel

 

 

Key

CA Court of Appeal

CAC Central Arbitration Committee

EAT Employment Appeal Tribunal

NICA Northern Ireland Court of Appeal

SC Supreme Court

TULRCA Trade Union and Labour Relations (Consolidation) Act 1992