Top HR Cases of 2017: Ones to Watch

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03 Jan 2017

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As we enter into the new year, we take a look at the top cases to watch so far for 2017, and what they might mean for employers.

1. Brierley and others v Asda Stores Ltd

What, When & Who?

In June 2016 female store workers at Asda appeared at an employment tribunal arguing that they were entitled to equal pay to their male colleagues working in the supermarket’s warehouses. They claimed that:
  • Their roles are similar to, or of equal value, to warehouse staff
  • The reason for the pay discrepancy is that they are female
  • Both groups should receive the same pay.
Asda contended the case saying that they believed the demands of the jobs are very different. The Manchester Employment Tribunal ruled in favour of the workers, telling representatives of 7,000 current and former workers that they can compare themselves to more highly paid male colleagues, who work in the retailer’s distribution centre.

Why should employers take note?

The decision could see workers recovering more than £100m in claims, dating back to 2002, with the potential for even more claims from workers who had been waiting to see the result of the Manchester judgment. It also has far-reaching implications for other supermarket equal pay claims. Pay differences between male and female co-workers will certainly be one of, if not the most, important topics of 2017. All organisations with 250+ employees will need to report the overall gender pay gap between all men and women on 5 April 2017. This will need to be reported annually, not just on the organisation’s website, but also a dedicated Government website, which means that the information is accessible to all.  

2. Employment Tribunal Fees

What, When & Who?

Anticipated by some to feature in the Autumn Statement, but which failed to materialise, the removal of employment tribunal fees argument looks set to carry on into 2017. From July 2013, claimants in the UK have been charged a fee to bring a claim to tribunal, another fee if the claim is heard, and a charge on top of that if they choose to appeal a decision. Unison, one of the UK’s largest trade unions, have campaigned to remove the fees since their introduction, so far to no avail. The Court of Appeal rejected the claim on the basis that there was insufficient evidence that claimants were unable to afford the fees. Unison’s appeal is expected to be heard by the Supreme Court in March 2017.

Why should employers take note?

The number of cases which reach Employment Tribunal have dramatically reduced since the fees were brought in. If Employment Tribunal fees are ruled unlawful, encouraged by Unison, it is likely that the ET figures will ascend once more. The fees have arguably been beneficial for employers, in the sense that their introduction has deterred false or spurious claims from reaching the stages of a tribunal hearing.  

3. Gig Economy Cases

What, When & Who?

A trend toward a gig economy is well and truly underway. The term itself defines an environment whereby temporary positions are common, and businesses contract with independent workers for short-term engagements. Instead of a salary, workers will be paid for the ‘gigs’ they do, such as a delivery or taxi ride: hence the terminology. It was difficult for anyone to ignore the commotion that the Uber case provoked late in 2016, not least for London commuters who were affected by the drivers’ ‘go-slow protest’ in November. The protest was in response to a tribunal ruling which stated that Uber drivers were in fact workers and not self-employed drivers, meaning that they are entitled to rights such as holiday and sick pay. More and more people engaged with businesses operating in a similar manner are beginning to question their employment status. This mentality is expected to continue throughout 2017, so is likely to spur more cases as time goes on.

Why should employers take note?

Getting employment status wrong can subject a company to unnecessary predicaments. The way an employee acts and is treated will significantly differ to the traits of a self-employed contractor, which employers should always abide by. As proved by recently tribunal cases, the financial implications of getting an employment status incorrect can be crippling, i.e. the decision that Uber drivers are workers means the calculation and payment of many hours holiday pay.  

4. Whistleblowing

What, When & Who?

Whistleblowing laws have meant that a disclosure is not protected unless an employee reasonably believes that it is being made “in the public interest”. The laws have existed since June 2013, and have summoned a particular interest surrounding what exactly qualifies as being “in the public interest”. The case of Chesterton Global v Nurmohamed is listed to be heard in The Court of Appeal in June 2017, where it is expected to decide whether or not the EAT’s liberal interpretation of what the phrase means is correct. The EAT in the Chesterton case originally held that matters which potentially affected the operation of the commission scheme for over 100 Managers at a large firm of estate agents could be considered ‘in the public interest’.

Why should employers take note?

The case will help to define what is considered to be ‘in the public interest’, which could influence what should or shouldn’t be reported by employees.

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