Case Reports


Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V. v Shimizu [2018] EUECJ C-684/16, CJEU

13 February 2019

A worker who does not apply for paid annual leave during employment does not automatically lose the right to a payment in lieu of untaken leave on termination. The worker must have been given an opportunity to take that leave, and it is for the employer to show that it encouraged the worker to do so.

Wood v Durham City Council [2018] UKEAT/0099/18/00, EAT

13 February 2019

Where treatment is caused by an excluded condition under regulation 4(1) of the Equality Act 2010 (Disability) Regulations 2010 no disability discrimination will occur as the condition will not amount to an impairment, meaning the definition of disability under the Equality Act 2010 will not be satisfied.

Asda Stores Ltd v Brierley and ors [2019] EWCA Civ 44, CA

7 February 2019

In order to establish whether claimants can compare their terms to their chosen comparators, it needs to be determined whether common terms apply for each class of employee regardless of which establishment they are employed at. This test can be satisfied whether common terms apply generally, ie for all employees, or for employees within the relevant class. It is correct to use a hypothetical analysis, however unfeasible the working arrangements would be in reality, to answer the question of whether the terms apply irrespective of where the employee works.

Hargreaves v Manchester Grammar [2018] UKEAT/0048/18, EAT

6 February 2019

It was within the band of reasonable responses for an employer not to disclose evidence to an employee facing a disciplinary hearing where the employer had reasonably formed the view that the evidence in question was immaterial and could not assist either the claimant or the disciplinary panel.

Williams v The Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65, SC

6 February 2019

An ill-health early retirement pension scheme providing an enhanced pension did not result in unfavourable treatment because of something arising in consequence of a disability under s.15 of the Equality Act 2010 even though the enhanced provision was calculated on the employee’s part-time salary, due to a reduction in working hours as a reasonable adjustment. The benefits of the early pension scheme did not result in discrimination occurring, even though other employees could have received a more advantageous benefit.

Addison Lee Limited v Lange [2018] UKEAT/0037/18, EAT

30 January 2019

The employment tribunal had not erred in holding that drivers working for a private hire firm were ”workers”, despite being described in their contracts as independent contractors. The tribunal was entitled to adopt a “realistic and worldly wise” approach and find that the contractual wording did not reflect the reality of the working arrangements.

Hein v Albert Holzkamm GmbH & Co [2018] EUECJ C-385/17, ECJ

30 January 2019

For the purposes of EU paid annual leave, workers who are placed on short-time working cannot have their holiday pay reduced below the pay they would normally receive during periods of work, as this would deter the worker from taking leave designed for the purpose of rest and relaxation.

George v London Borough of Brent [2018] UKEAT/0089/18/RN, EAT

23 January 2019

The employment tribunal had erred when considering whether an employer’s failure to allow a redundant employee a contractual trial period in an alternative role rendered dismissal unfair. Given that, if alternative employment was offered on terms which were not reasonable then that would, prima facie, justify the conclusion that the dismissal was unfair, the tribunal had not adequately explained why the employer’s refusal of a trial period, in breach of contract, was not unreasonable.

Uber BV v Aslam [2018] EWCA Civ 2748, CA

21 January 2019

Drivers met the legal definition of “worker” under s.230(3)(b) of the Employment Rights Act 1996, Regulation 36(1) of the Working Time Regulations 1998 and s.54(3) of the National Minimum Wage Act 1998 based on a review of the practical reality of the relationship between the drivers and the organisation. Applying the principle from Autoclenz Limited v Belcher [2011] ICR 115, employment tribunals can look beyond the relationship outlined in the contractual documentation, where this does not reflect the reality of the arrangement, to examine the true nature of the relationship by having regard to all the circumstances.

Awan v ICTS UK Ltd [2018] UKEAT/0087/18, EAT

17 January 2019

A medical incapability dismissal when an employee was receiving permanent health benefits was unfair due to an implied contractual term prohibiting the employer from dismissing employees on the grounds of incapacity while they were in receipt of payments under the insurance scheme.