Five key Employment Law cases to watch in 2020

In the constantly shifting landscape of Employment Law it can be difficult to keep up to date with the latest cases and updates, particularly at the start of a new year. Here, our Employment team detail the high profile cases of 2020, explaining how they could impact you and your business, and how you can stay up to date throughout the year.

Royal Mencap Society v Tomlinson-Blake

This case relates to care workers on "sleep-in shifts", where they provide overnight on-call support to patients but are expected to sleep for the majority of the shift, for which Mencap paid flat-rate fees below the National Minimum Wage (NMW). An employee of Mencap, Mrs Tomlinson-Blake, brought a claim against Mencap after she calculated that her wage equated to around £3.23 an hour, which is below the NMW. Upon reaching the Employment Appeal Tribunal, it was ruled that carers working sleep-in shifts were entitled to the NMW for every hour of their shift, regardless of whether they were awake and carrying out relevant duties. However, that decision was appealed, and in the Court of Appeal it was held that the care workers were merely available for work during their sleep-in shift rather than actually working, so they were only entitled to the NMW when they were awake for the purposes of working.

The case has now reached the Supreme Court which will determine whether employees on sleep-in shifts are engaged in “time work” for the duration of the shift, or whether they are only available for work rather than actually working.

This distinction is important because the NMW is only payable for periods that are correctly classified as “time work”. The outcome will have significant implications for employers, particularly those in the care sector who potentially face claims for back pay.

The case is due to be heard this February.

Uber BV and others v Aslam

This case is due to be heard in July 2020 and will address the issue of employment status in the gig economy.

In the Employment Tribunal (ET) decision of 28 October 2017 (Aslam and others v Uber BV and others ), the ET held that the Uber drivers are workers for various reasons, including the fact that there was no contract between the driver and passenger. As workers, the drivers are entitled to receive basic worker rights such as the NMW and paid annual leave.

Uber appealed to the Employment Appeal Tribunal (EAT). The EAT delivered its decision on 10 November 2017, which agreed with the ET that Uber drivers are workers and dismissed the appeal.

Uber sought permission to appeal the EAT decision directly to the Supreme Court (bypassing the Court of Appeal), but the Supreme Court refused the application. The Court of Appeal heard Uber's appeal in October 2018, and on 19 December 2018 delivered its decision to dismiss the appeal, agreeing with the EAT.

The Court of Appeal has given Uber permission to appeal its decision that the drivers are workers for the purposes of the Employment Rights Act 1996, the National Minimum Wage Act 1998 and the Working Time Regulations 1998 to the Supreme Court. Uber argues that their drivers are self-employed as the app is providing a booking and payment service as an agent for the drivers and that the contract is between the driver and any passengers for each ride.

Lee v Ashers Baking Co Ltd and others

The Supreme Court had found in 2018 that Christian bakery owners had not been guilty of associative direct discrimination on the ground of sexual orientation when they refused to provide a cake bearing the words "Support Gay Marriage". The Supreme Court held that the bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics, meaning that there was no discrimination on grounds of sexual orientation.  Subsequently, the Supreme Court reversed the Northern Ireland Court of Appeal’s decision.

Since that ruling, an application has been lodged at the European Court of Human Rights to consider whether it was directly discriminatory on the grounds of sexual orientation, religious belief or political opinion for the bakery and its Christian owners to refuse to provide a cake bearing the message to a gay man associated with an organisation representing the lesbian, gay, bisexual and transgender community in Northern Ireland. The admissibility of this application is yet to be decided. If the application does not meet the admissibility requirements, the complaint will not even be examined.

Various claimants v Wm Morrisons Supermarket

In January 2014, Andrew Skelton, who was employed by Morrisons as a senior IT auditor, secretly copied the personal data (names, dates of birth, addresses, bank account details and salaries) of 99,998 Morrisons’ employees on to a USB stick. He posted the data on a file-sharing website and notified local newspapers about the breach. Although he had tried to conceal his identity, he was identified and subsequently sentenced to eight years’ in prison. It is speculated that Mr Skelton had a grudge against Morrisons because of a previous disciplinary matter in 2013 and so he leaked the employee data to damage Morrisons.

The Court of Appeal upheld the High Court's ruling that Morrisons are vicariously liable for a data leak by Andrew Skelton.

Morrisons appealed to the Supreme Court and this case is awaiting judgment. While there is no date set, it will be heard in 2020.

Casamitjana v League Against Cruel Sports (LACS)

One of the nine protected characteristics under the Equality Act 2010 is religion or philosophical belief and it is unlawful to discriminate against someone based on their religion or philosophical belief.

For a belief to be protected, it needs to be;

• capable of being respected in a democratic society,
•  a genuinely held belief and,  
• be clear and logical and not just an expressed opinion or viewpoint.

Mr Casamitjana was employed by an animal welfare charity (LACS), who dismissed him for reasons of gross misconduct. However, Mr Casamitjana argued that his dismissal was due to his belief in ethical veganism. Mr Casamitjana had raised concerns that the charity’s pension fund had investment connections with companies that used animal testing. LACS stated that his employment was not terminated because of his concerns, there was no substance to his ‘whistleblowing’ claims and that his dismissal was not linked to veganism.

Mr Casamitjana argued that his choice to be a vegan concerned ethics which impacted every part of his life, and he often took part in animal protection campaigns both independently and through organisations. He claimed unfair dismissal and discrimination on the grounds of his “philosophical belief” in ethical veganism.

At a preliminary hearing to determine the issues in the case the Employment Tribunal (ET) had to decide whether ethical veganism was capable of being protected as a philosophical belief.  Ethical vegans try to exclude all forms of animal exploitation from their lifestyle. For instance, they avoid wearing or buying clothing made from wool or leather, or toiletries from companies that carry out animal testing.

The ET delivered its decision on 3 January 2020 and ruled that ethical vegans should be entitled to similar legal protections in the workplace as those who hold religious beliefs.

It held that ethical veganism qualifies as a philosophical belief under the Equality Act 2010 because the belief is worthy of respect in a democratic society, is not incompatible with human dignity and is not conflicting with the fundamental rights of others.

It is yet to rule on whether Mr Casamitjana's dismissal was unfair or that he was discriminated against - a hearing is going to be scheduled to determine this at a later date.

It is important to note that this decision does not determine that all ethical vegans hold a philosophical belief. As ET decisions do not form binding precedents, this rule cannot be applied to all cases. The nature of the belief of each claimant would need to be assessed on a case by case basis to see whether their particular belief was a protected characteristic.

Employers should remember that each ruling detailed here has been reached on the individual circumstances of each case and cannot be used as a blanket approach. If you have any questions or would like advice on any of the above issues, then you can contact a member of our Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.To stay up to date with the proceedings of these cases and the world of employment law, you can subscribe to our weekly Employment Law Newsletter by emailing events@warnergoodman.co.uk or by filling in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.