No arguments – 2016 has been a seismic year by any standard. Whether you are grieving over David Bowie, still mourning England’s dismal performance in the Euros or contemplating the likely impact of Trump-Brexit on the future of civilisation as we know it, you might be forgiven for not putting employment law at the centre of your seasonal reflections. Never fear, we’re here to help, with our picks for the critical cases of 2016. Agree or disagree? We’d love to hear your comments.
In reverse order…
5. Onu v Akwiwu; Taiwo v Olaigbe (Supreme Court)
This was the case of two migrant domestic workers who sought to argue that mistreatment on the basis of their immigration status amounted to race discrimination, such as to be actionable in an Employment Tribunal. Although it rejected their claims, the Supreme Court acknowledged the severity of the treatment they had received, and expressed concern and sympathy about the lack of effective legal recourse. Baroness Hale’s suggestion in the judgment that Parliament may wish to afford a jurisdiction to Employment Tribunals to ‘grant recompense’ to workers who suffer ill-treatment in these circumstances is one which chimes well with the current increase in awareness of modern slavery and other forms of exploitation, albeit perhaps less well with a more general anti-immigrant sentiment.
4. British Gas Trading Ltd v Lock (Court of Appeal)
A decision which said almost nothing – and what it did say was exactly what everyone expected it to. Why important then? Because the Court of Appeal decided that the Working Time Regulations 1998 “can” be interpreted to require results-based commission to be reflected in holiday pay calculations. The decision is both baffling in terms of its logic (as no one reading the Regulations and taking them at face value could ever reach that result) yet also entirely inevitable in view of the line of recent authorities in both the European and UK courts relating to Working Time under EU law. For now, we at least have some clarity. But will the recently-improved holiday pay rights of those earning commission (and overtime) be one casualty of Brexit. Who knows?
3. Bellman v Northampton Recruitment (High Court)
This case concerned an office Christmas party which some attendees followed up with a late night drink session in a hotel. Following an alcohol-fuelled exchange of words, a Director struck one of the employees, who sustained brain injuries. The High Court had to decide whether the company (and therefore their insurers) were vicariously liable for the assault.
Although, this is not ‘employment law’ in the classic sense, questions of vicarious liability do arise regularly, and a knowledge of the subject should inform many HR policy areas, including those around health & safety, harassment and, yes, Christmas parties and other work-related socialising. The High Court in this case confirmed that the business was not liable. It cited several factors which differentiated the later informal drinks from the party itself. (If the punch had been thrown at the party then the business would have been liable.) There was a view that the Supreme Court decision in the Mohamud v Morrisons case earlier in the year (concerning an employee attack on a customer) had slightly lowered the threshold for vicarious liability. Bellman seems to show that it will still be hard to make out in a quasi-work scenario, although the decision may itself be appealed.
2. G4S Cash Solutions (UK) Ltd v Powell (Employment Appeal Tribunal)
A disabled employee who was unable to continue in their substantive role was moved to a lower-paid role as a reasonable adjustment to keep them in work. Did the employer in these circumstances have to offer pay protection?
On the facts of this case, yes, pay protection would have been a reasonable adjustment. This is not the outcome that we, nor other commentators, would have predicted. Until now the law seemed fairly clear that whilst an employer might be expected to make costly adjustments, directly increasing the payment to an employee was not something which the courts would consider to be reasonable. We predict more cases arising from similar circumstances. Will this prove to be a one off, or the start of a trend?
1. Aslam and Others v Uber BV and Others (Employment Tribunal)
This very high-profile piece of litigation has barely got off the starting blocks. The ET decision will undoubtedly be appealed. Therefore we can expect a whole trail of cases dealing with employment status in the so-called ‘gig economy’. Of course, lots of cases about employment status are nothing new. Fifteen years ago it was all builders, then agency workers had a moment in the spotlight. The difference now is the rapid rise in numbers of people in this part of the labour market, and its expansion into new sectors. Can the law anticipate these changes or will we inevitably be playing catch up? How the employment law system copes with this societal change is one of the big stories for the next decade.
And looking forward…
What are we expecting to see in 2017? As well as potential appeals mentioned above, we know there are important upcoming appeals on equal pay, whistleblowing and indirect discrimination. We also predict an increase in strike litigation, cases involving transgender rights and continued interest in the gender pay gap. So watch this space…