Case law updates
Damages: A claimant, a gynaecologist employed by a private hospital, was awarded over £880,000 (being 10 years of loss) after succeeding with his whistleblowing detriment claim. However, the employer appealed, and the Employment Appeal Tribunal granted the employer’s appeal against the amount, accepting that the tribunal should have taken into account the following factors when making an award for a substantial, career-long loss: the extent to which the claimant’s losses were caused by the detriments; the possibility that claimant’s workplace would close in the future; the possibility that the claimant’s career would not have progressed as claimed; and whether it would be reasonable to expect the claimant to relocate to mitigate his loss. These points may act as useful guidance for employers challenging significant loss of earnings claims. [BMI Healthcare v Shoukrey]
Discrimination – religious beliefs: A former magistrate and non-executive director of a National Health Service (NHS) and social care trust was found not to have been discriminated against, nor his human rights breached, when he was removed from his lay magistrate post and disciplined in his non-executive director role for publicly expressing his Christian views objecting to same-sex couples adopting children. The Court of Appeal held that the action taken against him was not because he was a Christian but because his views prevented him from acting impartially in adoption cases involving same-sex couples and because his comments impacted the trust’s ability to engage with gay service users. [Page v Lord Chancellor; Page v NHS Trust Development Authority]
Equal pay (1): The Supreme Court has ruled that for the purposes of an equal pay claim, the work of mainly male depot distribution workers could be relied upon by the claimants, a group of female retail store workers, for comparison even though they did not work at the same establishment. The Supreme Court ruled that the tribunal was required to apply the ‘North hypothetical’, that is, it should have considered whether the male depot workers would have been employed on broadly similar terms to their current ones if they had worked at the same site as the claimants. The Supreme Court did not interfere with earlier decisions which concluded that they would have. This is the first stage for the claimants in a notoriously complex area of discrimination law; to succeed with their claim, they will need to establish that their work was of ‘equal value’ to the male comparators, and any differential in pay will need to be found to be due to gender and not a material, non-discriminatory reason. [Asda Stores Ltd v Brierley] For more information, please visit the Employment Law Watch blog.
Equal pay (2): The requirement for an employer to disclose documents and information relating to alleged comparators’ contracts, jobs, and pay in a group equal-pay claim was not ‘a fishing expedition’, but a necessary exercise to help the claimants formulate their choice of comparators and address the "informational asymmetry" which arises in these cases (that is, because the employer tends to hold the information necessary for claimants to prove their case). [Tesco Stores Ltd v Element and others]
Holiday pay: An individual who took leave but was not paid for it (because he was treated as self-employed by the company, although later held by the Supreme Court to be a worker) was out of time for bringing a holiday pay claim on the termination of his employment, rather than within three months of when payment would have been due. Although the CJEU in King v. Sash Window Workshop established that a holiday which was not taken because an employer refused to pay for it could be carried forward, the Employment Appeal Tribunal (EAT) held that the CJEU decision did not apply in cases like this one where the leave had in fact been taken, albeit unpaid. We understand the decision is being appealed. [Smith v. Pimlico Plumbers]
National minimum wage: The Supreme Court has found that care workers who are required to sleep at or close to their workplace to provide assistance if needed are only entitled to the national minimum wage during the times that they are “awake for the purposes of working”, a composite term which requires both elements to be met. Time spent asleep, or awake but not for the purposes of working, do not qualify. [Royal Mencap v. Tomlinson-Blake]
Settlement negotiations: An employee who accepted the offer of the transfer of ownership of his company car on termination, but did not reach agreement on overall severance terms, was not then able to claim a breach of contract when the car was not transferred to him. Although the tribunal found that a binding agreement had been reached, the EAT concluded this was an error. The EAT concluded that the offer of the car was not freestanding, but was part of wider settlement discussions and that negotiation of severance agreements would become too complex if a party could unilaterally sever the terms by accepting some but seeking to improve others. Although fact-specific, the case acts as a reminder of the importance of clarity in negotiations and the benefit of settlement agreements to record the agreed terms. [Evergreen Timber Frames v. Harrington]
Tribunal procedure – adjournment and strike out: In circumstances where a claimant was unable to attend a hearing through no fault of her own (in this case, the need for emergency dental treatment) and also did not notify the tribunal until the morning of the hearing, it was a denial of justice for the tribunal to have refused the application for an adjournment and to have struck out her claim. [Mukoro v. Independent Workers' Union Of Great Britain]
Tribunal procedure – case management: In the absence of a material change in circumstances, an original order being based on material omission, or there being some other substantial reason, it was not for a tribunal of equivalent jurisdiction to interfere with a case management order already made. In the present case, this meant that it was not appropriate for a tribunal to overturn an existing order that a jurisdictional point be heard at a preliminary hearing. [E v. X, L & Z]
Tribunal procedure – out of time: The EAT has overturned the tribunal’s finding that it was not reasonably practicable for a claimant to submit his claim on time in circumstances where he had not received the Acas early conciliation certificate. Although the claimant needed the certificate to bring his claim, and the tribunal had not considered it unreasonable for him to have waited until the limitation period had expired before contacting Acas, the correct test was whether it was reasonably practicable for the claimant to have obtained the certificate sooner, a test which requires more than just behaving reasonably. [Stratford on Avon District Council v. Hughes]
Tribunal procedure – judgments: The High Court has provided guidance on when it is appropriate to still hand down a reserved judgment in circumstances where, having seen a draft, the parties have agreed to settle conditional upon judgment not being handed down, considering that the parties’ interests and agreement had to nevertheless be weighed up with the public interest. Public interest considerations may outweigh private ones where, for example, the dispute related to regulated entities, the judgment vindicated a witness, or points of public interest were raised. The decision will turn on the facts, but the case acts as a reminder that last-minute settlements will not necessarily prevent the judgment being handed down. [Beriwala v. Woodstone Properties]
TUPE: Last year, the Court of Justice of the European Union (CJEU) found that, subject to a contract being easily divisible and an employee’s working conditions not being severely impacted overall, the Acquired Rights Directive could be interpreted to make it possible for individuals to transfer to multiple transferees in proportion to the tasks they carry out under their contract on a business transfer. The EAT has now ruled that this decision does and should apply to service provision changes under the Transfer of Undertakings (Protection of Employment) (TUPE) where there are multiple transferees. The EAT concluded that there was no reason in principle why an employee could not hold two or more contracts of employment with different employers where their work under each contract was easily separable and identifiable as such, although the judgment does not address the issue around the impact on working conditions, which was a feature of the European case. This decision marks a change from previous domestic principles that an employee could only transfer to one transferee. [McTear Contracts Ltd v. Bennett and others]
A ‘week’s pay’: The Employment Tribunal has held that Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 – which came into force on 31 July 2020 and which set out how a ‘week’s pay’ is calculated for statutory pay purposes when the employee has been furloughed – does not apply retrospectively. As such, the claimant, whose notice period spanned this date, was only entitled to receive notice pay based on his full pre-furlough pay for the period of notice on and after 31 July 2020. [Bayliff v. Fileturn Ltd]
Working time (1): The ECJ has handed down two judgments on when being on standby counts as working time under the Working Time Directive, finding that where a worker is constrained by a requirement to be contactable and to potentially return to the workplace, this will only be ‘working time’ if there is an objective and significant impact on the worker’s ability to devote time to their leisure interests while in this standby mode. Only constraints imposed by the employer, the law, or a collective agreement are relevant factors linked to the worker’s choice (such as where they choose to live), and the availability of leisure activities in the vicinity are irrelevant. As a post-Brexit case law decision, UK courts and tribunals are not bound by it, although they may nevertheless ‘give regard to’ it, and so the decision remains relevant in that context. [DJ v. Radiotelevizija Slovenija and RJ v. Stadt Offenbach am Main]
Working time (2): The ECJ has found that where an employee works under several employment contracts with the same employer, whether there has been compliance with minimum rest periods should be considered by looking at all the contracts as a whole, and not each one individually, given that the purpose of the legislation to protect workers’ health and safety. The same issue – but where an individual has more than one contract of employment with different employers – was not considered, but employers with workers in this position should be mindful of the principles in this decision. As a post-Brexit decision, UK courts may ‘give regard’ to it. [Academia de Studii Economice din Bucureops ti v. Organismul Intermediar pentru Programul Operational Capital Uman – Ministerul Educatiei Nationale]
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