In Brief: Case Law Special (May 2021)

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 judgement online.

The decisions highlighted in this article cover a wide range of employment issues, including equal pay, national minimum wage, employment status and disability discrimination.  

Supreme Court Judgements

(a) Equal Pay Comparators

It’s a bit like buses – you wait half an hour for one and along come 3!  It’s been a bit like that this last few months, with the Supreme Court publishing 3 important judgements including confirming that female retail workers in Asda Stores Ltd v Brierley [2021] could compare themselves to predominately male workers at a distribution site.  The matter is by no means over as the Claimants in the case will now have to go back to an Employment Tribunal (ET) to pursue their equal pay claims. 

(b) National Minimum Wage for Sleep-in Shifts

In addition the Supreme Court has ruled in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad [2021] that the national minimum wage is not due for periods of on-call time when the workers were on ‘sleep-in shifts’.  While this judgement has brought some relief to the care industry particularly as the implications of back pay for the industry, there is none-the-less some concern that the judgement could result in a reduction in benefits for many workers in the care industry and there have been calls for the rules regarding payments for sleepovers, not least by Mencap themselves in responding to the judgement so it remains to be seen where this leads. 

(c) Employment Status

The Supreme Court has also held in Uber v Aslman and Ors [2021] that Uber drivers must be categorised as workers, bringing with it the right to worker rights, such as those under equality laws, working time and national minimum wage.  Following on from this the Court of Appeal has dismissed an appeal by Addison Lee that its drivers were not workers finding that the drivers were workers and they worked to the extent that each time the driver logged into the internal driver portal system they were undertaking to accept driving jobs offered. 

Moving out of the sphere of the gig economy a recent decision by the Court of Appeal in England which found that foster carers were workers for the purposes of being entitled to be members of a trade union, namely the National Union of Professional Foster Carers.  It has been suggested that this case along with an earlier case of Glasgow City Council v Johnstone may lead to further analysis of the employment status of foster carers.  Indeed, in the trade union membership case it was suggested by Lord Justice Underhill that the “The Government may wish at least to consider whether it would make sense for it to consider seeking now to introduce bespoke legislative provision for the position of foster carers, which would either preserve the present exclusion or provide for rights appropriate to their very unusual role.”

Covid-19 Related Matters

In the last couple of months we have started to see a number of Covid-19 related case decisions coming through including the case of Rodgers v Leeds Laser Cutting Ltd [2021] in which an ET  dismissed Mr Rodgers claim for automatically unfair dismissal on grounds that he felt he was in serious or imminent danger due to concerns around Covid-19 safety.  This important case highlights an employer’s responsibilities in providing a safe place of work including during the Covid-19 pandemic and its defence against claims such as this when it has been provided.   

In Kubilius v Kent Foods Limited [2021] an ET found that the dismissal of an employee for refusing to adhere to Covid-19 rules regarding the wearing of a mask was fair and an Employment Tribunal in Jersey dismissed an employee’s claim for unpaid wages during lay-off (as a result of Covid-19) due to the fact that a contractual provision was in place permitting lay-off without pay.  It is worth remembering in this case that the employer appeared to have misunderstood the furlough arrangements in Jersey which led to the rejection of a claim for furlough payments.

Disability Discrimination

A couple of recent cases highlight the fact that meeting the definition of disability can be a significant challenge for many claimants and on occasion even the courts have difficult grappling with the intricacies of the definition.  For example, in Elliott v Dorset County Council [2021] the EAT held that an ET had erred in the approach to ‘substantial adverse impact’ as the Judge had not addressed the activities the Claimant (who was diagnosed with Asperger’s Syndrome ) said he could not do as a result of his condition.  In Derby v Southwark Council [2021] the Claimant was unable to demonstrate that she was ‘substantially adversely affected’ for a period of 12 months or at all and in Toth v HR GO (Liverpool) Ltd & Mayr-Meinhof Packaging UK Ltd [2021] the Claimant was unable to demonstrate again that her condition (PTSD) adversely affected her to the extent that she was unable to do normal day to day tasks such as shopping or going to work. 

Legal Island, in association with Jones Cassidy Brett Solicitors, have prepared what we hope will be a user-friendly and helpful guide for Employers in making Reasonable Adjustments for disabled employees.  View guide >

These cases and many more can be found in the Case Law section on the Hub.