Landmark cases for HR in 2016

Landmark cases for HR in 2016
The following cases are due to be considered by the UK courts and at a European level during 2016. They deal with current HR issues such as calculating holiday pay correctly, religious dress and discrimination at work, whistleblowing and unfair dismissal claims, the transfer regulations, collective redundancy consultation requirements, and the introduction of tribunal fees.
Calculating holiday pay
The case Lock v British Gas questions whether holiday pay calculations should include commission or similar payments which vary according to work done or sales achieved. The case was referred to the Court of Justice of the European Union (CJEU) in 2014, which held that the EU’s working time directive does require statutory holiday pay to take those payments into account. When the case returned to the UK last April, a tribunal decided it was necessary to add wording to the UK’s Working Time Regulations 1998 to comply with the directive.
In December, the Employment Appeal Tribunal (EAT) heard an appeal against this decision. The EAT’s judgment, expected early this year, should say whether the regulations can be altered in this way, or whether a change to legislation is required. Unfortunately this may not totally resolve the issue as the case must go back to the tribunal to determine how to actually calculate commission for statutory holiday pay purposes.
Religious and racial discrimination
A French court has referred a case called Bougnaoui v Micropole Univers SA to the CJEU over the ‘genuine occupational requirement’ rules of the equal treatment directive. The case concerns an employer whose client said it no longer wished to have the IT services the company provided delivered by an employee wearing an Islamic headscarf. Bougnaoui was dismissed after she refused to remove the scarf when visiting the customer’s premises. The case questions whether a ‘no visible signs of religious belief’ dress code can be a legitimate and proportionate occupational requirement and not discrimination.
A Belgian court has also asked the CJEU whether prohibiting a female Muslim from wearing a headscarf at the workplace constitutes direct discrimination if the employer’s rules prohibit all employees from wearing outward signs of political, philosophical and religious beliefs at work. The employer in the case Achbita v G4S Secure Solutions NV seems to be arguing that there can be no discrimination when all employees are treated in the same way and a non-Muslim would not be allowed to wear any outward sign of religious belief.
In the UK the case, Home Office v Essop, is to be heard in the Supreme Court. In it black and minority ethnic (BME) employees aged over 35 are arguing they were disadvantaged by a core skills assessment test as statistics showed older BME candidates were less likely to pass.
The Court of Appeal decided last year in the case that it was necessary for indirect discrimination claimants to show not only that a provision, criterion or practice (PCP) has disadvantaged both a group and the individual claimant sharing a protected characteristic (religion or belief, disability, age and so on) but also how it has done so. This sets a double hurdle for claimants: for example, a female employee claiming that a PCP disadvantages women employees as a group must not only prove why that is so, but also that the same disadvantage applies to her.
Tupe service provision changes
In BT Managed Services v Edwards, the claimant had been off work for over five years due to ill health. He had no prospect of ever returning to work and played no part in the activities being carried out for a client at the time the work in question transferred to another company under the Tupe ‘service provision change’ rules. Edwards did not transfer and both an employment tribunal and the EAT decided in September this was the right outcome.
The EAT pointed out that while employees would transfer if they were part of an organised grouping carrying out the work even if they were on temporary long-term sick leave or maternity leave, permanent absence was different. On the other hand, Edwards was still ‘on the books’ in order to receive permanent health insurance payments and Tupe is designed to protect employees when a contract transfers. The Court of Appeal will now take the case forward.
Collective redundancy consultation
The case USA v Nolan, last heard in the Supreme Court in November, is going back to the Court of Appeal to determine when an employer’s duty to consult in collective redundancies is triggered. The court will have to decide whether ‘in good time’ in the Trade Union and Labour Relations (Consolidation) Act 1992 means consultation must start once an employer suggests a course of action which might lead to redundancies, or only once a strategic decision resulting in jobs being put at risk has been made.
Whistleblowing ‘in the public interest’
The Court of Appeal is to consider the EAT’s April 2015 ruling in the case Chesterton Global v Nurmohamed. The EAT found that the unfair dismissal claimant made his disclosure alleging manipulation of figures used to calculate his own and over 100 other managers’ sales commissions ‘in the public interest’. Clarification is needed on whether a disclosure which affects a whistleblower personally and others, but not the general public, meets the legal test introduced in 2013.
Tribunal fees
The Supreme Court is to hear the challenge to the introduction of tribunal fees, R (on the application of Unison) v Lord Chancellor. In August the Court of Appeal rejected the trade union’s claim that the fees made it practically impossible to enforce employment rights, were indirectly discriminatory, and in breach of the public sector equality duty.