Last year (2018) was a bumper year for key employment decisions says Croner author Ellie Harrison, and new judgments were released on the often grey areas of employment law, which have a binding effect on internal business practices.

Perhaps the most talked about case was the Supreme Court considering the employment status of a plumber and agreeing with the lower decisions that, in reality, the plumber was a “worker” and not a self-employed independent contractor.

Continuing with this theme, the tribunals and court systems are expected to be ever-busy in 2019, with a number of significant decisions making their way through the appeal process. Below, we take a look at the key case law developments which could impact employment law and HR in the coming 12 months.

Minimum wage and sleep-ins

Whether employers are required to pay care workers for the entire length of a sleep-in shift, or solely for any time spent carrying out work during these shifts, has long been a grey area for care employers. A number of cases over the years have led to differing case law principles, with no one clear principle to follow.

In Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 129, the Court of Appeal clarified that National Minimum Wage (NMW) was only payable for the time care workers were required to be awake for the purpose of working during shifts, even if they were required to sleep at, or near, their workplace. Unison has since confirmed it is seeking leave to appeal this decision to the Supreme Court. Should it be successful, it is hoped that the Supreme Court will provide the final confirmation on the correct approach for sleep-in payments, ensuring clarity for employers who use this practice within their business.

Sex discrimination and statutory Shared Parental Pay

The discriminatory treatment of enhanced maternity pay policies applying to female workers, when internal policies provide only statutory payments to all employees taking Shared Parental Leave, was considered in two similar sex discrimination claims.

In Capita Customer Management Ltd v Ali [2018] UKEAT/0161/17, the Employment Appeal Tribunal determined that a male employee did not suffer direct sex discrimination when he was paid statutory Shared Parental Pay (ShPP), even though females on maternity leave received enhanced maternity pay. This was because the two types of leave were considered materially different, since the purpose of maternity leave is not to care for the child but to safeguard the health and safety of women who have given birth or are breastfeeding. On the issue of indirect sex discrimination, in Hextall v Chief Constable of Leicestershire Police [2018] UKEAT/0139/17 the Employment Appeal Tribunal considered that paying enhanced maternity pay but only statutory ShPP could be indirect discrimination by causing a particular disadvantage to male employees, when compared to female employees.

These cases are due to be considered by the Court of Appeal in May 2019. Employers who currently provide, or are considering providing, additional maternity leave and pay benefits will be keen to understand whether they are placing themselves at risk of sex discrimination. It is thought that a finding of sex discrimination, whether direct or indirect, will lead to many employers removing maternity pay enhancements and offering statutory pay rates to all employees on family leave, rather than enhancing their rates of ShPP.

Status and employment rights

A series of headline-grabbing cases on employment status and the ”gig economy” focused attention on this area in 2018. There were decisions against a wide range of employers from all sectors, with notable cases including those against Pimlico Plumbers and Uber. There appears to be no indication that the difficult area of employment status will fall back under the radar, with many more tribunal and higher decisions expected in the coming year.

With the Court of Appeal granting Uber leave to appeal its decision in Uber BV v Aslam [2018] EWCA Civ 2748 that the tribunal was entitled to find their drivers were “workers”, we could see the Supreme Court consider the employment status of individuals working through technology platforms for the first time. There are also a number of first instance decisions which may have widespread implications on their alleged “employers”, with a Team GB cyclist arguing she was a “worker” or “employee” of the funding organisation and a group of courier drivers contending they were Royal Mail employees.

The ongoing publicity in this area will, no doubt, lead to many more claims relating to employment status and employment rights. The Government has recognised that further clarity is needed when applying employment status tests and its Good Work Plan, released in December 2018, confirmed legislation will be introduced for this purpose. It is highly unlikely any clarifying legislation will be introduced by the end of 2019 leaving employers at a continuing risk of getting status, and subsequent employment rights, wrong.

Equal pay in the supermarkets

Traditionally, equal pay claims were associated with public sector organisations and mass claims organised by trade unions. In 2018, the attention switched to the private sector and, in particular, the pay practices of the UK’s largest supermarkets.

Mass equal pay claims have been brought by thousands of employees working for Asda, Tesco, Morrisons and Sainsbury’s. In the Asda case, predominantly female workers who carried out duties within the supermarkets are bringing equal pay claims by comparing their pay to higher rates paid to the predominantly male workers working within warehouses.

When determining whether equal pay laws have been breached, the first stage for tribunals to consider is whether the job roles can be compared. In October 2018, the Court of Appeal considered Asda’s appeal against previous findings that the shop workers could compare their role to the warehouse workers. That decision is awaited and, depending on the outcome, may be further appealed before the next stages within the claim can be considered. The outcome of the Asda case will have an impact on the other equal pay cases, and it will remain to be seen whether a successful ruling will lead to an influx of equal pay claims against other private sector employers.

Other notable decisions to expect

  • The Court of Appeal will consider the Employment Appeal Tribunal’s conclusion that voluntary overtime can be taken into account when calculating holiday pay in Flowers v East of England Ambulance Trust [2018] UKEAT/0235/17/JOJ.

  • The Grand Chamber of the European Court of Human Rights has heard a referral against the finding that covert video surveillance of employees suspected of theft breached their right to privacy in López Ribalda v Spain [2018] ECHR 14.

Last reviewed 16 January 2019