Cases to look out for in 2017
Court decisions due on workers’ rights, holiday pay and religious discrimination
Organisations keeping an eye on employment case law may experience a sense of déjà vu this year as some of the ‘cases to look out for’ that featured in last year’s previews are subject to further appeals this year, and others, which were due to be heard in 2016, have carried over into 2017.
Employment rights in gig economy firms are being subjected to a great deal of scrutiny both in the courts and elsewhere. The Employment Appeal Tribunal (EAT) will be asked this year whether an employment tribunal was right to decide, in the case Uber v Aslam, that the company’s drivers were ‘workers’, with working time and national minimum wage (NMW) rights, rather than self-employed as Uber claimed.
On 6 January, a tribunal found that a cycle courier working for delivery firm CitySprint was not an independent contractor, but a worker entitled to paid holiday and NMW rights. Other organisations such as Excel and Addison Lee are facing similar claims, and a parliamentary select committee has launched an inquiry into the future world of work that will examine the employment rights of those working in the gig economy.
The case Lock v British Gas is waiting for an appeal hearing date in the Supreme Court. The case was referred to the Court of Justice of the European Union (CJEU), returned to the original tribunal, and then was appealed to the EAT and the Court of Appeal on whether sales commission that is part of normal pay must be included in statutory holiday pay. Even if the court upholds previous rulings that it should be, the case will have to go back to the employment tribunal to determine the correct reference period for the calculation.
The Court of Appeal will consider the EAT’s ruling in the case Chesterton Global v Nurmohamed. For whistleblowers to be protected in law, the disclosures they make must be ‘in the public interest’. The EAT found that Nurmohamed did have others in mind when he alleged profit and loss figures, used to calculate the sales commission for more than 100 managers, including himself, had been manipulated. The appeal on whether this did satisfy the public interest legal test was due to be heard last year but has now been scheduled for 8 June.
The case R (on the application of Unison) v Lord Chancellor, challenging the introduction of tribunal fees, scheduled to be heard by the Supreme Court in December, has now been relisted for 27 March. In June 2016, a Justice Committee report concluded that the level of fees should be substantially reduced, fee remission thresholds increased and further consideration given to the position of women alleging maternity or pregnancy discrimination. The results of the Ministry of Justice review of the impact of fees, promised last year, are still awaited, with the only indication being they may be published early in 2017.
Two cases, Achbita v G4S and Bougnaoui v Micropole Univers, resulted in conflicting Advocate General (AG) opinions last year on whether banning female Muslim employees from wearing an Islamic headscarf amounted to religious discrimination. This year, the CJEU will have to decide which is correct.
In Achbita, AG Kokott took the view that such a ban was not direct discrimination when founded on a company rule forbidding the wearing of any visible political, philosophical and religious symbols at work. It may, however, constitute indirect discrimination, but could be justified if it was enforcing a policy of religious and ideological neutrality.
In Bougnaoui, AG Sharpston thought that insisting an employee should not wear an Islamic headscarf when delivering services to a customer amounted to direct discrimination, and could not be justified as a genuine ‘occupational requirement’. She was of the opinion that, while it may be legitimate for an employer to impose dress standards, a ban involving the wearing of religious apparel generally, or the Islamic headscarf, was unlikely to be seen as proportionate.
The Court of Appeal will hear an appeal against the EAT’s ruling in Pendleton v Derbyshire County Council that a schoolteacher had been indirectly discriminated against on grounds of religious belief when she was dismissed after deciding to remain with her husband following his conviction and imprisonment for downloading indecent images of children.
The appeal involves one of the first known cases of indirect discrimination involving an employee being disadvantaged by a religious belief in the sanctity of marriage. Because of her marriage vows, the teacher felt she could not comply with her employer’s policy of ending a relationship with a person convicted of sexual offences involving children. While the employer’s aim was a legitimate aim, it had no evidence to show dismissing the teacher was proportionate in the circumstances.