There have been many cases which have gone through the courts and employment tribunals during 2017. Some were unsurprising but some were unexpected. Here is a summary of some of the more newsworthy cases which you should certainly be aware of as we head into 2018.
Abolishment of employment tribunal fees
R (on the application of UNISON) v Lord Chancellor (Supreme Court)
One of the biggest cases of 2017 was the surprise Supreme Court decision, which not only abolished Employment Tribunal fees moving forwards but also ordered all fees previously paid since July 2013 to be reimbursed.
Following this ruling, claimants can now bring claims to Employment Tribunals without having to pay a fee, reverting the law back to pre-July 2013. This change has already seen a huge increase in the number of claims brought to Tribunal in recent months and removes the barrier to justice, which the fees were criticised for from the outset of them being introduced.
Employers should, therefore, expect a greater risk of claims being brought against them. Now, they can no longer rely on claimants being potentially deterred from bringing a claim (especially a low value one) by having to pay a fee. It is now advisable for employers to think twice about the risk of claims and engage more readily in Acas early conciliation, in a bid to try and settle potential claims before they are brought to Tribunal.
Pimlico Plumbers Ltd and another v Smith (Court of Appeal)
There were several cases this year which questioned whether individuals labelled as ‘self-employed’ were, in fact, ‘workers’ and therefore, entitled to, amongst other things, the national minimum wage and holiday pay.
Of all of the stories that made national news, one of the most prominent cases involved Uber taxi drivers. Despite being labelled as ‘self-employed’, the drivers were found to be ‘workers’ of Uber and ultimately entitled to the national minimum wage and holiday pay.
Although not reaching the headlines in quite the same way, the Pimlico Plumbers Ltd and another v Smith case also saw the Court of Appeal rule that a ‘self-employed’ plumber was, in fact, a ‘worker’. Pimlico Plumbers Ltd has appealed to the Supreme Court and is awaiting a hearing, which is expected to take place in February 2018.
These cases are useful reminders to employers that they cannot hide behind the label that they attach to their staff. The Courts will always look beyond this and take into account the true working relationship between the parties when determining an individual’s employment status.
Employer ordered to pay back employee 13 years of unpaid holiday pay
The Sash Window Workshop Ltd and another v King (European Court of Justice)
In one of the latter cases to appear before the Courts this year, Mr King, a salesperson who originally agreed with his company, Sash Window Workshop Ltd, that he would be classed as ‘self-employed’ rather than as an ‘employee’, questioned his employment rights.
After retiring, Mr King claimed that he was owed 13 years’ backdated holiday pay as he was actually a ‘worker’. The European Court of Justice found in favour of the claimant, placing the onus on the employer to provide paid annual leave to individuals, regardless of their employment status label or whether they request paid time off for holiday or not.
Sash Window Workshop Ltd was, therefore, ordered to pay back to Mr King, his 13 years’ unpaid holiday pay. This was an unexpected result, as UK case law generally limits any back payment of unpaid holiday claims to a maximum of two years.
Increases in discrimination compensation
Pereira de Souza v Vinci Construction (Court of Appeal)
Successful claimants of any discrimination claims brought to an Employment Tribunal on or after 11th September 2017, can now claim for increased levels of ‘injury to feelings’ compensation, under the three different ‘Vento bands’:
- Lower band (less serious cases, where the act of discrimination is an isolated/one off incident) – now between £800 and £8,400 (previously £600 to £6,000);
- Middle band (serious cases, which do not merit an award in the highest band) – now between £8,400 and £25,200 (previously £6,000 to £18,000); and
- Upper band (most serious cases, where there has been a lengthy period of discrimination or harassment) – now between £25,200 and £42,000, with the most exceptional cases capable of exceeding £42,000 (previously £18,000 to £30,000).
Increases to the ‘Vento bands’ have been fairly common over the years, although this case has seen a more significant rise in the amount of compensation available to successful claimants. It is likely that these figures will rise again, possibly next year, although not by the same substantial margins.
Long-term sick leave dismissals
O’Brien v Bolton St Catherine’s Academy (Court of Appeal)
This case concerned a teacher who had been on sick leave for over a year. In summary, the Court of Appeal provided guidance, ruling that employers are not expected to wait forever for an employee to recover from illness and that dismissal is a possibility, even if there has been a vague promise from the employee of an imminent return to work.
This result will undoubtedly be a welcome relief, as managing employees on long-term sick leave is one of the most challenging issues for an employer to be faced with. However, the validity of long-term sick dismissal will be dependent on the disruption caused to the business by the absence of the employee and should be carefully considered before deciding to dismiss.
Holiday pay and voluntary overtime
Dudley Metropolitan Borough Council v Willetts (Employment Appeal Tribunal)
It has been a requirement for compulsory overtime to be included in the calculation of holiday pay for some time, but the case of Dudley Metropolitan Borough Council v Willetts has seen the Employment Appeal Tribunal rule that ‘regular and settled’ overtime should now also be included.
Ali v Capita Customer Management Ltd (employment tribunal)
When shared parental leave was introduced, one of the main concerns for employers who offer enhanced maternity pay for women was whether they were required to provide the same enhanced offering to men who take shared parental leave. Would employers risk facing sex discrimination claims from men and having to justify their policy if they did not match the maternity leave conditions?
In the case of Ali v Capita Customer Management Ltd, Mr Ali’s employer, Capita, allowed him just two weeks’ paternity leave on full pay, whilst offering mothers on maternity leave full pay for 14 weeks. Mr Ali won his claim for sex discrimination at the Employment Tribunal, although Capita is appealing against the ruling. This could be a key case for employers in 2018.