Top 3 Cases in Employment Law for 2016 – probably!
This is actually just my opinion and not actually passed around the team, but I think the Top 3 cases in Employment law for 2016 are:
3. British Gas v Lock and Others – Holiday Pay – This one seems to have been going on for years and I suppose it has. This year the Court of Appeal said that commission must form part of holiday pay, which of course follows on from other cases saying bonuses and overtime should also be included. So we have left behind the idea that when a person is on holiday they only get their basic pay and they should now be paid, effectively, what they get paid in normal time. Average payments for overtime, bonuses, commission etc. have to be added to the holiday pay. I suppose there is a certain amount of logic to this as no one should suffer a detriment for taking a break from work. However the C of A decision may not be the final word as the Supreme Court is due to have a look at the Lock case and give their view as well.
2. Snell v Network Rail – Shared Parental Leave – So here we have the very first case on shared parental leave and it cost Network Rail £28,000. I think it is fair to say that most employment lawyers thought that there could be problems where women received enhanced maternity pay and men only received statutory pay when sharing parental leave. This first case kept things nice and tidy as both parents were employed by Network Rail, however the female contract provided for enhanced maternity pay (full pay in fact) while the male contract only offered statutory parental pay. Needless to say the tribunal thought this was discriminatory – hence the healthy start to young Snell Jnr’s bank balance. Network Rail is saving the money by removing the enhanced pay for mothers in the future, so it is doubtful that Mr Snell is actually being hailed as a hero in this one.
And at No 1
My tip as the most important judgment of the year has to be Aslam & Others v Uber – worker status. – When is a person self employed, a worker or an employee? This question has been around for as long as taxation, well perhaps not quite that long, but it has certainly been around the block. Uber claims that their drivers are all self-employed, that’s as maybe said the employment tribunal, but they are also ‘workers’. Workers is the wonderfully grey area between self-employed and employed, brought about by some EU legislation and although workers do not get all of the same employment rights as employees, they are guaranteed the National Minimum/Living wage and perhaps even more importantly they are entitled to annual leave and holiday pay. Not only will this one cost Uber a small fortune it may also trap others who are operating in the so called gig economy. Therefore, top of the list for things to check in 2017, if you haven’t already done it, is to see if your casuals, consultants and other not quite employees, are actually workers and entitled to benefits not previously considered. Despite the unambiguous decision of the tribal, this is due to go to the EAT next year.
Adrian Barnes, December 2016
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