In Brief: Case Law Special (July 2019)

This month’s 'In Brief' is a common law catch up. It can be hard to keep up-to-date with case law developments – it’s all too easy to miss an important decision that has major implications for employers and employees. For this very reason we decided to compile a list of some of the most interesting employment cases that have been decided in the last few months.

If you want to know more about any of the cases, each has a link to a more detailed case review on the Northern Ireland Employment Law Hub, where you will also find a further link to the full judgment online.

The decisions highlighted in this article cover a wide range of employment issues, including discrimination in pension arrangements; importance of adhering to time limits for lodging an unfair dismissal claim; role of tribunals in determining the content of a claim; enforcement of restrictive covenants; Human Rights issues in relation to ‘private’ correspondence; collective agreements and calculation of holiday pay.   

Lord Chancellor v McCloud [2018]

This case dealt with discrimination in Pension arrangements for younger firefighters and it was held that younger firefighters were victims of unlawful age discrimination due to the pension reforms. This decision is likely to have an effect on any pension reform that Government would bring in that affects NI employees as well as being ‘food for thought’ for any pension reform that occurs within the Northern Ireland public sector either through restored devolution or any direct action from Westminster.

Mervyn v BW Controls Ltd [2019]

This case is a reminder of the importance of setting out arguments clearly in an ET1/ET3 form as the EAT makes clear that it is not the function of the Tribunal to delve into the claimant’s case with greater detail and determine what claims should have actually been brought instead of the one that was brought.

Tillman v Egon Zehnder Ltd [2019]

The outcome of this case is seen as a bit of victory for Employers in the use of Restrictive Covenants in that where a particular element of a covenant is seen as unreasonable then it can be severed leaving the rest of covenant enforceable.  You may wish to read this case in conjunction with an excellent article titled, Restrictive Covenants – What’s new?, by Kiera Lee, Mills Sellig on the implications of this case for the use of Restrictive Covenants.

Garamukanwa v United Kingdom [2019]

This case focuses on Article 8 of the Human Rights Act 1998 - right to private and family life and provides some guidance on the use of what could be perceived as private correspondence in disciplinary processes. 

Graham v Leisure Tours NI Limited [2019]

This case is a useful reminder of the importance of Claimants adhering to time limits for lodging claims to the Northern Ireland Industrial Tribunal (NIIT).  In this particular case the Claimant was unable to demonstrate that it was not reasonably practicable for him to lodge within the 3-month timescale.  The outcome of the PSNI holiday pay case may lead to more claims being lodged – some of which may be out of time and this case provides some useful guidance on how the Tribunal will deal with time issues. 

Mart v Assessment Services Inc [2019]

This case focuses on a strict interpretation of the definition given to disability in Schedule 1, Para. 6 of the Disability Discrimination Act 1995.  Where a visual impairment can be correctable by spectacles or contact lenses or in such other ways as may be prescribed then it will not be regarded as a disability regardless of the cosmetically unattractive consequences of correcting sight impairment did not lead to a disability as a result of diplopia.

Chief Constable of the PSNI & Northern Ireland Policing Board v Agnew & Others [2019]

The NIIT decision resulted in a recalculation of the potential holiday pay bill for the PSNI to upwards of £40 million.  Main findings:

• The NICA confirmed that Police officers were not workers under the Employment Rights (Northern Ireland) Order 1996 but the EU principle of equivalence entitled them to bring claims relating to a series of deductions. 
• A gap of three months or more did not break a series of deductions. 
• There was no requirement for leave from different sources to be taken in a particular order. 
• A daily rate for overtime should be calculated by using the number of working days in a year rather than calendar days.
• Normal pay should be calculated based on average pay over a rolling 12-month reference period immediately preceding the period of leave, although this will be fact-sensitive in each case.

We understand that this case has been appealed to the Supreme Court.

Lozaique v Tesco Stores Ltd [2019]

Does a collective agreement relating to overtime overrule an express term relating to overtime shift premium pay. In this particular case the answer is no and highlights the importance of careful drafting of contractual clauses particularly those which are varied by collective agreements.

Rooney v Retail Zoo Limited [2019]

This case once again emphasises the challenge that Claimants face in successfully arguing a case for constructive dismissal and provides a useful reminder of the matters considered by the Tribunal in coming to a finding of constructive dismissal.