What will the key employment law cases be in 2018?

Employment law had an eventful 2017 and this is set to continue in 2018. We review here some of the key cases we can expect to see appealed in 2018 and what this will mean for employers.

Employment status in the gig economy

The gig economy was a central topic in employment throughout 2017, with several cases seeking clarification as to whether individuals were self-employed or workers.  If identified as workers, they would be entitled to benefits such as National Minimum Wage, holiday pay and sick pay.

The first case, Aslam and others v Uber BV and others, arose when Uber drivers brought claims for unlawful deduction of wages and a failure to provide paid leave.  They argued that they were workers, which was supported by the Employment Tribunal. This was for several reasons:

• Uber drivers are required to accept a minimum number of trips when working
• They cannot set their own rates and were integrated into the Uber business and marketed as such
• Once drivers had logged onto the Uber App, they were available to customers which were allocated to the driver by Uber.  

Uber appealed the tribunal’s decision arguing again that the drivers were self-employed, stating they were merely acting as a platform and an agent linking the drivers to customers.  The Employment Appeal Tribunal agreed with the original decision and the case was dismissed.  Uber then attempted to leapfrog the Court of Appeal and asked to have their appeal heard by the Supreme Court, however the application was refused. The appeal will now be heard by the Court of Appeal at some point in 2018.

There have been several other cases concerning the gig economy, such as Pimlico Plumber Ltd and another v Smith, Citysprint v Dewhurst, and most recently a contrasting decision involving Deliveroo riders, who were held to be self-employed.  Employers who offer work to self-employed individuals should consider a review of their written consultancy agreements as well as the day to day roles to ensure that they are genuinely self employed, as any misidentification could have serious financial ramifications.

Shared Parental Leave

Shared Parental Leave was introduced on 1^st December 2014 for parents of babies born on or after 5th April 2015 as a way to encourage both parents to be involved in the first months of their child’s life.  While there has been mixed success with the scheme, it has given rise to several sex discrimination claims in the Employment Tribunal.  The first of those was Ali v Capita Customer Management.  Mr Ali’s wife was encouraged to return to work after the birth of their child to assist in her recovery from postnatal depression.  When Mr Ali enquired as to his rights, he was informed that he was eligible for Shared Parental Leave, but would only be entitled to be paid statutory Shared Parental Pay.  This differed to the policy for female employees, which led to Mr Ali’s direct sex discrimination claim.  He also brought a claim of indirect sex discrimination due to less favourable treatment.  While the indirect sex discrimination claim was dismissed, Mr Ali’s direct sex discrimination claim was upheld.  Capita appealed that decision, which was heard on the 21^st and 22^nd December 2017.  The judgement of which will be made known in the near future.   

This case differed to the case of Hextall v Chief Constable of Leicestershire Police, where both direct and indirect discrimination claims were dismissed at an Employment Tribunal.  Mr Hextall has appealed this decision which will be heard on the 16^th January 2018 by the Employment Appeal Tribunal.  The outcomes of these decisions will be useful for employers when considering their maternity, paternity and Shared Parental Leave policies.

Disability discrimination cases to be heard in the Court of Appeal

Disability discrimination was the centre of several claims in 2017, with two main cases out for appeal in 2018. 

In the first case of Donelien v Liberata UK Ltd, Ms Donelien was dismissed in October 2009 after 11 years with the company for unsatisfactory attendance, failure to comply with the absence notification procedures and failing to work her contracted hours.  During her time with the company she was regularly absent with a range of illnesses and on several occasions she did not inform the company of the reason for her absence.  She was also obtrusive when Occupational Health attempted to contact her GP.  Following her dismissal, Ms Donelien brought a number of claims in the Employment Tribunal including a claim for failure to make reasonable adjustments.  The claim was dismissed as the Employment Tribunal ruled the company did not have constructive knowledge that Ms Donelien was disabled. Ms Donelien appealed to the Employment Appeal Tribunal who agreed with the previous ruling on the basis that the company had taken reasonable steps to understand Ms Donelien’s medical position.  Ms Donelien appealed this decision to the Court of Appeal on the 29^th November 2017; the outcome of which will be confirmed in 2018.  This case highlights the importance of following a fair and correct procedure regardless of the employee’s length of service, when it comes to long or short term sickness absences.

The second case, Peninsula Business Service Ltd v Baker, involved Mr Baker who informed his employer at the start of his employment that he might have dyslexia.  A few months later, Mr Baker mentioned that he could not take on a case due to his disability, so he was referred to Occupational Health which confirmed Mr Baker was likely to be disabled.  Aside from this, Peninsula were also concerned that Mr Baker was building up a private caseload and decided to  authorise surveillance on him. From this, they established that Mr Baker was visiting his mother during the working day.  They then started disciplinary proceedings and Mr Baker was informed that he was being monitored.  Mr Baker issued claims for victimisation and harassment arising from the surveillance. The Employment Tribunal ruled that the real reason for the surveillance was Mr Baker’s disclosure that he was disabled.  They also ruled that even though the surveillance did not amount to harassment at the time because Mr Baker did not know about it, the subsequent discovery in the disciplinary proceedings did constitute harassment.  Peninsula appealed to the Employment Appeal Tribunal, who overturned the Employment Tribunal’s decision for several reasons:

• First, the assertion by Mr Baker that he was disabled was not sufficient.  
• Second, the Employment Tribunal had not applied the right test to the victimisation claim; and its findings of fact were insufficient to support the conclusion that Peninsula had victimised the Mr Baker. 
• Third, the Employment Tribunal erred in holding that Peninsula was liable for surveillance carried out by its agent, who did not know anything about the protected acts relied on by Mr Baker.

The Employment Appeal Tribunal held that the Employment Tribunal had misinterpreted section 109 of the Equality Act 2010.  Mr Baker is now in the process of appealing the decision to the Court of Appeal, which is expected to be heard on 27^th March 2018.  Employers should await the decision from this case, as it provides useful clarification on monitoring employees. 

If you have any queries about these cases, or others, please contact the Employment team on 02380 717717 or email employment@warnergoodman.co.uk.

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.