Legal

Top five employment law cases of 2017

16 Jan 2018 By Nerys Cobner-Vale

Nerys Cobner-Vale counts down last year's most significant employment judgments, which could prove costly for businesses in 2018

5. Enhanced shared parental pay for fathers?

Should shared parental pay (ShPP) be enhanced for fathers on shared parental leave (SPL) if maternity pay is enhanced for mothers on maternity leave? The answer was yes in Ali v Capita Customer Management Ltd, where Mr Ali successfully argued that enhanced maternity pay for his female colleagues but no enhanced ShPP for him constituted direct sex discrimination. 

But in Hextall v Chief Constable of Leicestershire Police, the employment tribunal decided that the correct comparator was a woman on SPL, not a woman on maternity leave. 

The Employment Appeal Tribunal (EAT) heard Ali's appeal in December 2017 and the Hextall appeal is today (16 January). 

If the Ali decision is upheld, employers will need to treat ShPP and maternity pay equally and enhance (or not enhance) both. However, with two EAT judgments pending, employers should defer any changes to their family-friendly policies for now. 

4. Voluntary overtime to be included in holiday pay 

In Dudley Metropolitan Borough Council v Willettsand others, the EAT held that regular voluntary overtime should be included when calculating holiday pay. Consequently, guaranteed compulsory, non-guaranteed compulsory and voluntary overtime must all be included in holiday pay. For voluntary overtime, the test is whether the ‘pattern of work’ extends for a sufficient period of time on a regular and/or recurring basis to justify the description ‘normal’. 

Deciding what is ‘regular’ could be tricky, and in this case voluntary overtime once every four-five weeks was enough. This ruling only applies to the four weeks' leave guaranteed under EU law, not the additional 1.6 weeks' under UK law or any other contractual leave. 

While Dudley could leave employers exposed to claims of underpayment of holiday pay, employees with a break of more than three months between payments will not be able to argue that they have suffered a series of unlawful deductions. 

3. Worker status in the gig economy

Uber's woes continued when the EAT upheld the employment tribunal's 2016 decision that its drivers were ‘workers’ and not self-employed (Uber BV v Aslam, pictured). Uber's request to leapfrog its appeal to the Supreme Court was refused and a Court of Appeal hearing is expected. Other gig economy cases followed the same trend, namely the Court of Appeal ruling in Pimlico Plumbers v Smith, in addition to several employment tribunal decisions that couriers at CitySprint, Excel and Addison Lee were workers. 

It is for employers to ascertain the true employment status of their workforce, regardless of what the parties agree. Engaging staff on a self-employed basis when in reality they are ‘workers’ means they are entitled to the national minimum wage, paid holiday and pension auto-enrolment. The Supreme Court will hear Pimlico Plumbers' high-profile appeal on 20 February 2018.   

2. Backdated pay for untaken holiday could be recouped by workers

In King v The Sash Windows Workshop Ltd, the European Court of Justice (ECJ) ruled that Mr King, who had established ‘worker’ status, was entitled to pay for both unpaid holiday he had taken and holiday he did not take because he thought it would be unpaid. 

Unlike holiday, which carries over during sick leave and can be lost after a certain period, the ECJ found that there was no time limit on the untaken leave that had accrued because of the company's failure to provide King with his right to paid holiday as a worker. King could claim untaken leave for his 13 years' engagement. The Court of Appeal will now decide whether the ECJ judgment is consistent with UK law. 

1. Employment tribunal fees abolished

The key case of 2017 was the Supreme Court's decision in R (on the application of Unison) v Lord Chancellor that employment tribunal fees were unlawful. The number of claims has already started to increase. On 14 December 2017, statistics published by the Ministry of Justice for July to September 2017 showed a 64 per cent increase (compared to the same period in 2016) in single applicant claims. 

As well as new claims, employers may have to defend old claims that were struck out because the claimant did not pay the fee or was deterred from bringing their claim because of the fees. It will be decided case by case whether such claims can be brought ‘out of time’. 

If employers are faced with claims lacking substance, they can apply to have claims struck out where they believe the claim is vexatious or has no reasonable prospect of success, and applications can also be made for deposit orders as a condition of the employee continuing with their claim. 

Nerys Cobner-Vale is a solicitor in the employment law team at Blake Morgan

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