Five cases set to make an impact

Tribunal fees, whistleblowing, the gig economy… in the months ahead, these subjects and more will be at the heart of a number of high profile court cases – and the results of all could have serious ramifications for the grocery sector.


By Laura Morrison

Laura Morrison is a lawyer in the employment, pensions and immigration practice at Maclay Murray & Spens LLP. Email

From calculating annual leave to the legality of tribunal fees, a number of court cases are set to impact the grocery sector in the coming months, by setting important precedents in employment law. So what are the stories behind these five landmark cases, and how could they impact employers and business owners?

1. The ‘gig economy’ is being challenged

While ministers are considering the Taylor Review’s recommendations on the issue of supposedly self-employed workers in the gig economy, two appeals could also have a significant effect on the law. There is a high profile case involving Uber, but the first appeal to go ahead is likely to be that of Pimlico Plumbers.

Like the Uber case, it concerns whether individuals who are categorised as self-employed are actually workers because of the conditions imposed on them. If Pimlico’s appeal is not upheld, it could open the gates for thousands of ‘gig economy’ workers to claim rights, such as the National Minimum Wage and paid holidays.

2. Tribunal fees are under review

The Supreme Court has held in R (Unison) v Lord Chancellor that the current tribunal fees regime is unlawful and must be quashed. It accepted Unison’s argument that fees, at the present levels at least, are a barrier to justice. Fees paid since 2013 will now be refunded and the government will consider whether to try to introduce a new fees regime – perhaps with fees set at a lower level or with a more generous remission scheme. Employers noticed a marked downturn in claims against them since fees were introduced. Given that, it now seems likely the number of claims will start rising again.

3 & 4. Whistleblowing status could be strengthened

Two prominent cases relate to whistleblowing: Royal Mail Group v Jhuti is an appeal against a finding that a dismissal for whistleblowing was automatically unfair, even though the decision maker was unaware that such ‘protected disclosures’ had been made when dismissing the employee for alleged underperformance. If the Court of Appeal (CA) confirms the previous decision, it will inevitably be more challenging for employers to defend a claim of unfair dismissal where whistleblowing is also an issue – and there is no cap on compensation in whistleblowing cases.While many retailers may feel this is unlikely to affect them, the scope of those likely to be protected by whistleblowing status recently came under scrutiny in a second appeal case. The decision by the CA in Chesterton Global v Nurmohamed makes it clear that there are no hard and fast rules when it comes to passing the public interest test. A number of factors may be relevant, including the number of workers affected, the nature of the wrongdoing and the identity of the wrongdoer.

5. Holiday pay case could have the biggest impact

Given that many retail businesses employ staff on a variety of contracts, often involving varied working hours, the question of calculating annual leave can be a bone of contention with staff. The Court of Justice of the European Union is due to decide if workers can carry unused annual leave forward, when they have been unable to take holiday due to external factors. At the moment, the law only permits carry-forward in very limited circumstances: by agreement, in the case of the extra 1.6 weeks granted by UK legislation under the Working Time Regulations, or when a worker cannot take scheduled holidays because they were off sick.  However, the case of Sash Window Workshop v King could change that as it involves leave not being taken because the employer refused to pay the individual for it (believing him to be self-employed).

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