Employment law cases to watch in 2023

Jo Moseley identifies claims that will have a big impact on HR policies and practices over the next 12 months

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What steps can businesses take to dissuade employees from going on strike (and remain within the law)?

An employee who takes part in a lawful strike is protected against being dismissed for that purpose. But the position is less clear where they are suspended or disciplined in an attempt to prevent or deter them from going on strike. Can they rely on section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992, (which protects employees against detriment because they are a member of a trade union or have taken part in activities linked to a trade union) to protect them? 

In Mercer v Alternative Future Group, the Court of Appeal held that an employee who was subjected to a detriment (short of being dismissed) for taking part in industrial action couldn't bring a claim under section 146. It went on to say that this may put the UK in breach of article 11 of the European Convention on Human Rights (which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so) but that it couldn't rewrite the law to comply with this. 

The Supreme Court will determine this issue later in the year.

Why this matters

In December the UK recorded the highest number of working days lost to strikes for more than 10 years. That looks set to continue as inflation continues to eat into people's pay packets. 

It's not unusual for employers to remove discretionary benefits from workers and/or subject them to other detriments in an attempt to deter them from taking part in strike action. If the Supreme Court rules that section 146 can be interpreted in line with article 11, employees will be able issue claims in the employment tribunal to obtain compensation for their losses as a result of being subjected to detriments.

Do agency workers have the right to apply for internal job vacancies?

Regulation 13 of the Agency Workers Regulations 2010 gives agency workers a right to be informed of job vacancies. But does it give agency workers a corresponding right to apply for those vacancies?

In Kocur v Angard Staffing Solutions, agency staff were told they would only be able to apply for published vacancies once permanent staff had had the chance to do so. The Court of Appeal held that this didn't breach the regulations and that agency staff don't have the right to apply and be considered for internal vacancies on the same terms as directly recruited employees. The only right they have is to receive information about job vacancies. 

The Supreme Court is due to hear this case in December 2023. 

Why this matters

Many employers prefer to prioritise their own, in-house, staff to fill vacancies before offering them to temporary staff. This is particularly important in the context of redundancies where it's common to exclude agency staff from job vacancies until those members of staff who have been provisionally selected for redundancy have decided whether to apply for them.

When can you dismiss a serial complainer?

At what stage can an employer safely decide that 'enough is enough' and ignore the latest in a long line of unsuccessful grievances and/or dismiss the employee?

The EAT in Hope v British Medical Association held that the employer had acted within the range of reasonable responses after it dismissed an employee who had raised seven grievances over 13 months. He had refused to cooperate with the grievance process and this had undermined his relationship with his manager. 

The Court of Appeal is due to hear the case later this year.

Why this matters

With luck, the Court of Appeal will provide guidance to help employers decide how to deal with an employee who brings grievances in bad faith as a means of avoiding disciplinary action or as a way of causing trouble.

Jo Moseley is an associate solicitor in Irwin Mitchell’s employment law team