February Employment Law Update

Tribunals – important cases for this year, latest decisions and proposed changes to the remission of fees

The focus is on tribunals right now, both in terms of cases due to be heard this year and because the government’s review of the introduction of fees is finally out. While the fees look set to stay, lawyers advise employers to make sure their procedures are not exposing them to claims in the future.

Cases to watch

A number of cases due to be heard this year have significance for employers.

Uber v Aslam, last heard in November, will be heard again in the Employment Appeal Tribunal. The first tribunal decided the drivers were workers, rather than self-employed, and entitled to working time and national minimum wage rights.

Lock v British Gas, on whether holiday pay should include sales commission, is due to be heard in the Supreme Court. If the court finds it is part of ‘normal’ pay, the case will go back to the original tribunal to determine the correct reference period for the calculation.

Chesterton Global v Nurmohamed is a whistleblowing case on whether a disclosure relating to the sales commission of a 100 managers satisfied the ‘public interest’ test in legislation. It is being heard in the Court of Appeal on 8 June.

Achibita v G4S and Bougnaoui v Micropole, are two cases on banning the wearing of Islamic headscarves at work, in which Advocates General of the Court of Justice of the European Union (CJEU) gave conflicting opinions on whether this is lawful. The CJEU heard the cases in March last year, and its ruling is pending.

Walker v Innospec, a case on whether a civil partner is entitled to a late partner’s pension benefit, is due to be heard in the Supreme Court on 8 March.

Latest decisions

The Court of Appeal has decided in the case Adesokan v Sainsbury's Supermarkets that a regional manager’s negligence amounted to gross misconduct, justifying his dismissal without notice, although he had 26 years’ service with a clean disciplinary record. 

The claimant was in a senior position and the failure related to a very serious breach of an important procedure. In this context, the inaction amounted to gross negligence and the company was entitled to terminate the employment summarily.

In Dewhurst v City Sprint, an employment tribunal decided that a cycle courier, classed as self-employed, was actually a worker when carrying out her duties, and entitled to paid holiday. 

Tribunal fees

The Ministry of Justice has finally published its review of tribunal fees and issued a consultation on proposals for reform. While it is satisfied the fees are achieving its aims of transferring tribunal costs from taxpayers to users and encouraging Acas conciliation, it concedes there are “issues of concern” and that some adjustments are needed to “alleviate the effect that fees have had in discouraging ET claims generally, including workplace discrimination disputes.” 

Proposals for reform include:

  • raising the gross monthly income threshold for fee remission from £1,085 to £1,250 (broadly at the level of those working full-time on the National Living Wage)
  • not charging fees for proceedings related to claims on the National Insurance Fund (typically redundancy payments from insolvent employers).

The capital threshold for fees remission would remain at £3,000 (the claimant’s main dwelling, any pension lump sums and court settlements are not counted for these purposes).

The trade union challenge to the introduction of fees is due to be heard again on 27 March.  The consultation closes on 14 March 2017.

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