Employment law: six cases to watch out for in 2016

Employment law never stops changing. Here are some cases to watch out for in 2016.

Equal pay: supermarket sweep

Large-scale equal pay claims have traditionally been the reserve of public-sector workers. Things are about to change. We now have a high-profile private sector claim in Brierley v Asda Stores Ltd.

The Manchester Employment Tribunal will hear claims by 400 female floor staff seeking equal pay with male distribution centre staff in June.

Hot on the heels of the Asda case, a similar claim by Sainsbury’s female store based staff seeking equal pay with male distribution centre staff is currently pending before the Birmingham Employment Tribunal.

The [Part time] World Is Not Enough

In December, the Court of Appeal will consider whether a disabled employee was treated unfavourably under section 15 of the Equality Act 2010 (discrimination arising from disability). In The Trustees of Swansea University Pension & Assurance Scheme v Williams, Mr Williams’ ill health pension was based on the part-time hours he worked as a reasonable adjustment during the last two years of his employment rather than the full time hours he had worked during the previous 10 years of his employment.

The EAT has so far held that the operation of the ill health retirement scheme was not unfavourable treatment arising in consequence of Mr Williams’ disability as the scheme inherently benefited disabled employees as it only applied to disabled employees. Also, it was not appropriate to compare Mr Williams’ position with that of other disabled employees whose ill health retirement came on more suddenly at a time they were still working full time hours.

Will the Court of Appeal agree?

Sex discrimination: Single mother in the spotlight

In May, the Court of Appeal will consider the interplay between the employment and the education provisions of the Equality Act 2010.

The Court will consider whether an employment tribunal had jurisdiction to hear an indirect sex discrimination claim of a university student who had her work placement withdrawn because, as a single mother of a young child, she could not comply with the shift patterns applicable to the placement.

Where training is provided through a higher education institution which “has the power to afford access”, then complaints of discrimination associated with that power do not come within the employment provisions of the Equality Act. Instead, such complaints must be dealt with under the education provisions, for which the county court has jurisdiction.

The draw back for claimants having to rely on the education provisions is that it adds a layer of complexity. A claimant will need to establish that the organisation that carried out the discriminatory act (in this case the NHS Trust who withdrew the placement) did so in the capacity of agent for the University – a potentially substantial hurdle to overcome.

We wait to see if the Court of Appeal agree with Ms Blackwood that the University did not have overall ‘power to afford access’ as the NHS trust had the ability to terminate the access and therefore her claim should be heard in the employment tribunal

Holiday pay: earning commission on vacation

The hot topic of what constitutes ‘normal remuneration’ for calculating holiday pay continues to feature in 2016.

Following much highly publicised case law, workers are entitled to receive ‘normal pay’ when on the first four weeks of holiday leave. “Normal pay is that which is normally received”. This includes regularly worked overtime. Likewise, commission that is regularly earned must also be included.

2016 brings the next instalment in Lock v British Gas Trading Ltd. In this case, the Court of Justice of the European Union (CJEU) ruled that commission which couldn’t be earned due to a worker being on holiday must be taken into account in the subsequent pay period.

But how you actually work out what the commission sum would have been where commission fluctuates from month to month is not easy.

Last year the case returned to the tribunal to consider whether the UK’s legislation can (a) be interpreted in line with the CJEU decision and, if so, (b) how much holiday pay Mr Lock was entitled to.

In March 2015 we received the tribunal’s decision on the first point only. The tribunal found that there is no obstacle to interpreting the Working Time Regulations 1998 (WTR) so as to include commission payments in the calculation of holiday pay under regulation 13. The EAT considered the employer’s appeal on this interpretation point at the end of last year.

We are currently awaiting the EAT’s judgment. Should the appeal be rejected, it will be back to the tribunal this year for argument on question B, in particular, what happens where the commission rate already includes an element of ‘rolled-up’ holiday pay and what was Mr Lock’s actual loss?

Employment status: taxi!

Uber appears to be ever increasing its presence around the world as the ‘go to’ app for modern day cab hailing.

While legal challenges by black cab drivers have failed to date, a legal challenge by the Uber drivers themselves, backed by the GMB, will go before the London Central Employment Tribunal in July.

Are Uber drivers self-employed or ‘workers’ entitled to the national minimum wage and holiday pay? If they win, worker status (therefore attracting NMW wage and holiday pay rights) will have a material impact on the Uber business model.

Vicarious liability: The sins of another

As a general rule, employers will be held vicariously liable for the actions of their employees during the course of their employment. However, there are limits: there must be a sufficiently close connection between the wrongdoing and the employment. We await Supreme Court guidance on the potential scope of an employer’s vicarious liability early this year.

In the case of Mohamud v WM Morrison Supermarkets, a customer after leaving a petrol station kiosk was subjected to a violent racial attack on the forecourt by a station attendant who had followed him out, despite an express instruction from his supervisor not to leave the kiosk.

Is the employer liable for the actions of the attendant as the employer had placed him in a customer facing role?

So far, the High Court and Court of Appeal have held that the fact that the customer was assaulted on the employer’s premises by an employee and that part of his job was to interact with customers, albeit a relevant factor, was not sufficient to bring a close enough connection to attract vicarious liability.

UPDATE: The Supreme Court’s ruling is out! Click here for its decision.

This article was compiled by lawyers at Gowling WLG.