Top 5 employment decisions of 2017

Over the last year, employment law headlines have been dominated by case law developments on employment status, annual leave, religious dress in the workplace and shared parental leave.

In July, the UK saw one of the most significant employment law decisions of the last 50 years; tribunal fees were found as unlawful.

(1)  R (on the application of UNISON) v Lord Chancellor (Supreme Court)

Regardless of what side of the employment law fence you sit on, the decision of this case is without a doubt a phenomenal victory for Unison.

Unison began their legal battle back in 2013 and were rejected twice at the High Court and once at the Court of Appeal. It was in July 2017, that the seven judges ruled unanimously that the requirement of having to pay £1,200 for a claim to be heard in the Employment Tribunal was a serious impediment to an individual’s access to justice.

Following this decision, the Government was forced to terminate Employment Tribunal fees with immediate effect.

(2)  Pimlico Plumbers Ltd & another v Smith

Cases of worker status have continuously dominated the headlines in 2017. In this case the respondents argued that Mr Smith was employed on a self-employed basis. However, the defendant successfully argued that he was a worker for the purposes of employment legislation. The key factors considered in this ruling included:

• Mr Smith was required to wear a uniform with the company’s logo on it;
• He was contracted to work a minimum number of hours each week;
• If he was going to be absent, he was not required to provide a substitute to carry out his work in place of him;
• The employment agreement was made up of restrictive covenants which prohibited the defendant from working as a plumber in any Greater part of London.

Despite it being held in the Court of Appeal; that the claimant was a worker and should be entitled to employment rights, Pimlico Plumbers have appealed to the Supreme Court. This hearing has been predicted to take place early next year.

(3)  Ali v Capita Customer Management Ltd

Mr Ali’s wife was suffering from post-natal depression and had been recommended by her GP to return to work to support recovery. Because of this, Mr Ali requested to take shared parental leave at the earliest opportunity. His workplace policy stated that women on maternity leave should receive full salary for 14 weeks and any time after this would be paid at statutory maternity rates for the following 25 weeks.

In this case the employer had only offered the claimant the statutory minimum pay. Which meant that once he had taken his 2 weeks’ paternity leave, anything after would result in a substantial loss in earnings. Mr Ali argued that by his employers refusing to pay him the same rates as the child mother, was a matter of sex discrimination. The respondent contended that Mr Ali could not compare his situation to his partner on maternity leave as he was not the one who had given birth.

The Employment Tribunal agreed with the claimant, arguing that he had not compared himself to the mother who had given birth. Suggesting further that after the initial two – week recovery period that is specific to a baby’s mother, a female employee on maternity leave was an appropriate comparator. It was irrelevant that Mr Ali had not given birth. Thus, the ET up-held the claimants direct sex discrimination claim.

(4)  Dudley Metropolitan Borough Council v Willetts

In this case 56 employees of Dudley Metropolitan Borough Council argued that their holiday pay should include voluntary over time, as well as out-of-hours standby and call out payments.

The Employment Tribunal established in this case that for the majority of employees, voluntary overtime and allowances should have included holiday pay for the 4 weeks statutory minimum leave. This was because they were paid regularly enough to be considered as part of the normal remuneration. The EAT reiterated the Employment Tribunals decision on appeal.

The decision of this case highlights that payments for voluntary elements of work, not just overtime, should not be treated any differently. It is further observed in this case that out-of-hours standby payments and call-out allowances should have been included.

This may not always be simple, as the EAT fail to provide employers with guidance on what level of regularity or frequency is required for a payment to be classed as standard remuneration.

(5)  Achbita & another v G4S Secure Solutions

In this case the European Court of Justice (ECJ) held that prohibiting a female employee of Muslim faith from wearing an Islamic headscarf at work did not amount to direct discrimination based on religion.

When providing guidance, the ECJ established that, as long as the rules were applied consistently across the board, having a rule asking staff to dress “neutrally” cannot constitute to direct discrimination.

However, they did caution that having a “neutral” dress code rule may lead to claims of direct discrimination if there is evidence that individuals of a particular religion are then disadvantaged.

How can Employment Law Services (ELS) help?

If you require employment law advice on any of the issues raised in this article, or any other employment issue give us a call today on 0370 218 5662.  You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.

Please note, the information in this article is for guidance purposes only and it is therefore advised that employers seek legal advice before embarking on any enforcement action.