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Ten employment cases to look out for in 2019

  • United Kingdom
  • Employment law - HR E-Brief

04-01-2019

As the new year begins we highlight some key cases for HR practitioners and in-house employment counsel to watch out for in 2019:

Gig economy and worker status

IWGB union v CAC: The IWGB union is arguing that UK law must be broadened to permit outsourced workers to engage in collective bargaining with the organisation they are supplied to work at. Success for the union could enhance the rights of outsourced and agency workers vis a vis the service-user. We can also expect a number of other key rulings on employment status throughout the year.

Religion and belief discrimination and freedom of expression

R (Ngole) v University of Sheffield: The CA is being asked to rule on whether a university infringed a student's right to freedom of religion and expression by removing him from a social work course after he commented on Facebook that same-sex marriage is a sin. Meanwhile, the CA will also be considering the effects of belief beyond religious context and an individual’s ability to assert a belief in creative freedom to resist commercial restraint. It is to be hoped the cases will generate some useful guidance for employers facing the difficult task of balancing competing rights.

Disciplinary procedures

Agoreyo v London Borough of Lambeth: In this case, due to be heard on 29 January 2019, the CA will consider the circumstances in which an employee can claim constructive dismissal for being suspended during a disciplinary investigation. Disciplinary processes will also come under the spotlight in February when the CA will consider whether the High Court was right to order an employer to halt disciplinary action while a criminal investigation was ongoing (Gregg v North West Anglia NHS Foundation Trust).

Maternity pay v shared parental leave pay

Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicester: The CA is to consider whether it can be sex discrimination to pay men on shared parental leave less than they pay to women taking maternity leave. A ruling in favour of the claimants could encourage some employers to reconsider their generous maternity pay policies

Arrow  Read our briefing here 

Privacy around claims and allegations

A & B v X & Y (The Times Intervening) and ABC v Telegraph Media Group Ltd: In these cases prominent individuals are seeking to restrict the publication of allegations against them of discreditable conduct in the workplace. In A & B the EAT is to rule on a tribunal's power to restrict reporting of claims, while in ABC the High Court is to decide whether employees breached confidentiality clauses in settlement agreements by passing allegations to a newspaper and, if so, whether a temporary injunction preventing the newspaper publishing the allegations should continue indefinitely. The publicity around the ABC case in the wake of #metoo, shows that even apparently valid agreements cannot eliminate the risk of harmful allegations becoming public and the existence of a ‘gagging clause’ can itself damage reputations.

Workplace surveillance

López Ribalda v Spain: the ECtHR’s grand chamber is to review a controversial ruling that secret monitoring of staff through covert video surveillance violated their human rights, even though the aim was to investigate workplace theft. If the original decision is upheld it will make justifying covert-surveillance at work extremely difficult.

Arrow  Read our briefing on the original ruling  here

Holiday pay

Flowers v East of England Ambulance Trust: The CA is to consider a challenge to an EAT ruling that payments made for voluntary overtime that is regularly worked must be included when calculating holiday pay for the first four weeks of holiday. We can expect the CA to consider recent comments by the CJEU in the Hein case, which suggested employers might not have to factor pay for overtime into holiday pay calculations unless the worker is contractually obliged to work overtime.

Arrow  Read our briefing on the Hein case here 

Agnew v Chief Constable of the Police Service of Northern Ireland: Anderson v Police Authority for Northern Ireland: The NICA is to decide whether the EAT in the Bear Scotland case was correct to say workers lose the right to claim historic arrears of holiday pay where there was a gap of more than three months between underpayments. The NICA's ruling will not be binding on tribunals outside Northern Ireland. However, it could encourage a similar challenge, leaving GB employers potentially exposed to greater liabilities.

Agency workers

Kocur v Angard Staffing Solutions Ltd: The CA is to hear an appeal against the EAT’s ruling that there is a breach of the Agency Workers Regulations where there is a difference in entitlement to basic terms such as holiday and rest breaks, even if the disparity is compensated for by an enhanced hourly rate of pay. This need for a term by term comparison between employees and agency workers may not have been considered by many employers but could be significant in practice.

Key

EAT Employment Appeal Tribunal
CA Court of Appeal
NICA Northern Ireland Court of Appeal
SC Supreme Court
ECtHR European Court of Human Rights

For more information contact

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