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Some significant employment cases to look out for in 2018

  • United Kingdom
  • Employment law

04-01-2018

As the new year begins we highlight 12 cases for HR practitioners and in-house employment counsel to watch out for in 2018:

Shared parental leave and sex discrimination

Capita Customer Management Limited v Ali: In this case, heard last month, the EAT is due to rule on whether it is unlawful for an employer to pay less to a man on shared parental leave than it pays to a woman on maternity leave. A similar point is due to be considered by the EAT in a second case, which is due to be heard in January: Hextall v Chief Constable of Leicestershire Police.

Holiday pay

Shannon v Rampersad: In March the Court of Appeal will hear this case, which is likely to consider the effects of last year’s ruling in King v Sash Window Workshop Ltd. In that case the CJEU ruled that workers denied paid holiday by their employers can carry forward untaken leave indefinitely and are entitled to pay in lieu of the full amount of untaken leave on termination. That case itself is due to return to the Court of Appeal later in 2018.

Gig economy and worker status

Pimlico Plumbers Ltd v Smith: In February the Supreme Court will consider whether a plumber was a ‘worker’, and therefore entitled to holiday pay and protection from discrimination from the company for which he worked.

Uber BV and others v Aslam: Towards the end of 2018 the Court of Appeal is likely to hear an appeal against a tribunal’s decision that two Uber drivers who brought test cases against the company were ‘workers’ and were therefore entitled to holiday pay and to be paid at least the National Minimum Wage while working.

Blakely v On-Site Recruitment Solutions Limited: This test case concerns the employment status of workers engaged via umbrella companies. It was heard by the EAT last month and a ruling is expected shortly. The EAT is also due to determine employment status cases concerning couriers and foster carers.

IWGB union v University of London: The CAC will consider whether a university is the joint employer of certain outsourced workers, along with the outsourcing company which engages them directly. This test case notionally concerns collective bargaining rights but, if decided in the union’s favour, could have a broader impact on the rights of outsourced and agency workers.

Disability discrimination

Donelien v Liberata UK Ltd: This case was heard last November and concerns the issue of when an employer will have constructive knowledge of a disability sufficient to trigger the duty to make reasonable adjustments. It is one of a series of pending cases in which the Court of Appeal is considering what someone needs to know about an individual's disability before they can be liable for discrimination.

Sexual orientation discrimination v religious freedom

Ashers Baking Company Ltd and McArthur v Lee: On 1 May the Supreme Court will consider whether a bakery business discriminated against a customer when its owners refused, on religious grounds, to supply a cake decorated with the message ‘support gay marriage’. If the Court endorses earlier rulings in the case the effect could be to expand the reach of direct discrimination law.

Supermarket equal pay claims

Brierley v Asda Stores Ltd: This long-running case continues, with thousands of female shop floor workers claiming the same pay as male workers in distribution centres. Later this year the employer will go to the Court of Appeal to challenge a Tribunal’s decision that the claimants are able to compare their pay with that of workers based at different establishments. Other large supermarkets are also facing claims and more retailers could be at risk.

Changing terms and conditions

Kostal UK Ltd v Dunkley: Later this year the Court of Appeal is likely to consider, for the first time, statutory restrictions on employers’ ability to change employment terms in a unionised workplace without collective agreement.

National Minimum Wage: what counts as work?

Royal Mencap Society v Tomlinson-Blake and other cases: In March the Court of Appeal will consider what counts as work for minimum wage purposes, in particular the circumstances in which someone can be working merely by being present at the workplace (even if asleep).

Overseas workers

Bamieh v FCO: This case in the EAT raises questions about the rights of workers seconded to work outside the UK to bring whistleblowing and discrimination claims under British law against individual colleagues who are also based outside the UK.

Key

CAC    Central Arbitration Committee
EAT     Employment Appeal Tribunal
CJEU  Court of Justice of the European Union