Prominent cases in 2015

Discrimination law has been growing in scope, while travel to work time, holiday pay, employee misdemeanours on social media, and collective consultation obligations have all featured in claims before courts and tribunals this year – and some of these are still running.
Working time
The Court of Justice of the European Union decided in the case Federación de Servicios Privados del sindicato Comisiones obreras v Tyco that workers without a fixed place of work were on ‘working time’ when travelling to and from their homes to the first and last appointments of the day. The technicians were working on security installations in homes and commercial premises and had previously operated out of regional offices – but when these were closed the workers could be travelling up to three hours to get to that day’s calls. The employer had not previously counted the travelling time to and from the regional offices as working time.
The case has implications for employers of mobile workers with no fixed or usual place of work and employers will need to check these workers’ hours against the requirements of the Working Time Regulations 1988. The European court made it clear that whether this time should be paid or not is a matter for member states. In the UK, travel to and from the first and last appointments of the day does not count as working time for national minimum wage purposes, but case law has established that travel between appointments does.
Holiday pay
The case Lock v British Gas Trading is being heard by the Employment Appeal Tribunal this month and a decision is expected early in 2016. The appeal is challenging this year’s employment tribunal judgment that the UK’s working time regulations can be read to give effect to the European court’s judgment that holiday pay should include commission where this is part of normal pay. If successful, the government may be under pressure to amend the regulations. The appeal will not challenge the three-month gap rule established in the Bear Scotland v Fulton case which limits employers’ liability for underpaid holiday when there is a gap in a series of underpayments of more than three months. Since July claims for back pay for incorrectly calculated holiday pay are limited to two years under the Deduction from Wages (Limitation) Regulations 2014.
Social media
Two cases this year highlighted disciplinary measures arising from employee’s social media use. Biggin Hill Airport v Derwich involved the bullying of a temporary supervisor, first by being ‘unfriended’ by colleagues on Facebook, and then by having witch images placed on her computer as screensavers. The ringleader was nearly successful in her subsequent unfair dismissal claim because the employer had not followed its disciplinary procedure closely enough. Scottish Canals v Smithconcerned a waterways worker who made offensive remarks online about his managers and bragged about drinking while on standby (he claimed he believed his Facebook settings prevented the posts becoming public). The EAT found his subsequent dismissal fair and said such cases would need to be judged on their facts and by the ‘band of reasonable responses’ test.
Discrimination
Case law has been pushing the boundaries of discrimination law. The issue in the case Griffiths v DWPwas whether trigger points in an absence management procedure should be adjusted to take account of a 62-day disability-related absence. Both the employment tribunal and the EAT decided that the trigger point could not be continually extended as this would not help a disabled employee return to and remain in work. The case was heard again by the Court of Appeal in September, and judgment on it is expected early in 2016.
In EAD Solicitors v Abrams, the Employment Appeal Tribunal decided that a company set up by a retiring partner of the law firm to receive his profit share and supply a fee-earner (usually himself) to the firm when required, could bring an age discrimination claim. The Equality Act 2010 prohibits discrimination by one person against another, and in law ‘person’ can include companies.
In Tirkey v Chandock, the EAT decided the provisions on race in the Equality Act 2010 were broad enough to encompass characteristics determined by descent, which could include caste. The case went back to the employment tribunal where the claimant was awarded £183,773 for unpaid wages. The award for discrimination has yet to be determined.
In Chez Razpredelenie Bulgaria v Komisia, the Court of Justice of the European Union decided it was possible for someone to bring a claim for less favourable treatment because of a discriminatory measure arising from race, even though the claimant was not of the race concerned. The case involved a Bulgarian shopkeeper who complained that electricity meters were placed at an inconvenient height in an area that was prone to tampering. Her shop was in a predominantly Roma district of a city. She was not of Roma origin herself, but was able to claim indirect discrimination ‘by association’ with a protected characteristic.
Collective consultation
In May the European court revived the status quo on the meaning of ‘establishment’ in a collective consultation context. The case, USDAW v WW Realisation 1, was brought by ex-Woolworth employees who missed out on a protective award for the lack of consultation when the retailer closed because they were working in shops with fewer than 20 workers. The Employment Appeal Tribunal decided the words ‘at one establishment’ in the regulations should be disregarded and that the number of redundancies across the whole business should be considered. The liquidators appealed and won – but the Court of Justice of the European Union has warned that what is and is not ‘an establishment’ will depend on the facts of each case.