The top five employment cases that will shape 2023

We've identified the cases which will have a big impact on employment law and HR policies and practices over the next 12 months.

These cover: 

• Holiday pay
• Industrial action and the right to strike
• Rights of agency workers
• Whistle-blowing
• Serial complainers

1. Holiday pay - are the 'rules' which limit a series of deductions correct?

In 2019 the Northern Ireland Court of Appeal in Chief Constable of the Police Service of NI and others v Agnew held that the EAT's analysis of what amounts to a series of unlawful deductions in Bear Scotland was incorrect and had resulted in 'arbitrary and unfair' results.  It said that a series is not broken by lawful payments, or by a gap in payments of three months or more. It also stated that annual leave is not taken in a particular sequence and the different types of leave (Directive, Working Time Regulation and additional contractual holiday) are indistinguishable from each other.

This meant that over 3,300 police officers and staff could recover around £40 million in underpaid holiday. Our blog explaining this case is available here.

Decisions of the NI Court of Appeal aren't binding in England, Wales or Scotland but they can be persuasive. The Court of Appeal in Smith v Pimlico Plumbers (which we reviewed here) expressed a 'strong personal view' that Agnew was correct and Bear Scotland was not. We'll know for sure soon. The UK Supreme Court heard arguments on this issue in December 2022 and we expect it to hand down its judgment in the first quarter of 2023. 

Why this matters

Most employers have been able to rely on the EAT's judgment in Bear Scotland to limit their holiday pay liabilities to a worker's current holiday year.

If the Supreme Court agrees with the NI Court of Appeal its decision will be binding on all UK employers and workers will be able to recover underpayments going back up to two years in England, Wales and Scotland.

2. What steps can employers take to dissuade employees from going on strike (and remain within the law)?

An employee who takes part in a lawful strike is protected against being dismissed for that purpose. But, the position is less clear where they are suspended or disciplined in an attempt to prevent or deter them from going on strike. Can they rely on s146 TULRCA 1992 (which protects employees against detriment because they are a member of a trade union or have taken part in activities linked to a trade union) to protect them? 

In Mercer v Alternative Future Group Limited, the Court of Appeal held that an employee who was subjected to a detriment (short of being dismissed) for taking part in industrial action couldn't bring a claim under s146. It went on to say that this may put the UK in breach of Article 11 of the European Convention on Human Rights (which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so) but that it couldn't re-write the law to comply with this. 

The Supreme Court will determine this issue later in the year.

Why this matters

In December the UK recorded the highest number of working days lost to strikes for more than 10 years. That looks set to continue as inflation continues to eat into people's pay packets. 

It's not unusual for employers to remove discretionary benefits from workers and/or subject them to other detriments in an attempt to deter them from taking part in strike action. If the Supreme Court rules that s146 can be interpreted in line with Article 11, employees will be able issue claims in the employment tribunal to obtain compensation for their losses as a result of being subjected to detriments. 

3. Do agency workers have the right to apply for internal job vacancies?

Regulation 13 of the Agency Worker Regulations 2010 gives agency workers a right to be informed of job vacancies. But does it give agency workers a corresponding right to apply for those vacancies?

In Kocur v Angard Staffing Solutions Ltd, agency staff were told that they would only be able to apply for published vacancies once permanent staff had the first chance to do so. The Court of Appeal held that this didn't breach the Regulations. And, that agency staff don't have the right to apply and be considered for internal vacancies on the same terms as directly recruited employees. The only rights they have is to receive information about job vacancies. 

The Supreme Court is due to hear this case in December 2023. 

Why this matters

Many employers prefer to prioritise their own, in-house, staff to fill vacancies before offering them to temporary staff. This is particularly important in the context of redundancies where it's common to exclude agency staff from job vacancies until those members of staff who have been provisionally selected for redundancy have decided whether to apply for them. 

4. Can an employer fairly dismiss an employee for the way they have made a protected disclosure?   

The whistle-blowing regime protects employees if they are dismissed or subjected to a detriment because they have made a protected disclosure. The employee must have a reasonable belief that their disclosure is in the public interest and reasonably believe that what they allege is true. They can be wrong on both counts and still be protected. But how reasonably do they have to behave when actually making the disclosure? Will they still be protected if, for example, they question the integrity or awareness of the person they disclose the information to which leads to a breakdown in their working relationship and they are subsequently dismissed?

The Court of Appeal in Kong v Gulf International Bank Ltd said that there can be a distinction between the whistleblowing disclosure itself and the conduct of the person making it. But there isn't an objective standard tribunals can use to determine this - it will be a question of fact in each case. 

The claimant has asked for permission to appeal to the Supreme Court. We don't yet know if that has been granted.

Why this matters

An employee who is dismissed for making a protected disclosure will be able to bring a claim for unfair dismissal without needing the usual two years' qualifying service. If they succeed they can recover all of their losses as compensation isn't capped. It's therefore an attractive option for many employees.

As the law stands, an employer may be able to dismiss a whistleblower for the way in which they raise their concerns (particularly if this leads to a breakdown in their relationship with their employer) rather than the whistleblowing itself. Even if the Supreme Court doesn't interfere with this judgment, employers need to tread carefully. Generally you need to show that there's clear blue water between what the employee has disclosed and the reason why you have dismissed them or subjected them to a detriment. 

5. When can you dismiss a serial complainer?

At what stage can an employer safely decide that 'enough is enough' and ignore the latest in a long line of unsuccessful grievances and/or dismiss the employee?

The EAT in Hope v British Medical Association held that the employer had acted within the range of reasonable responses after it dismissed an employee who had raised seven grievances over 13 months. He had refused to co-operate with the grievance process and this had undermined his relationship with his manager. 

The Court of Appeal is due to hear the case later this year.

Why this matters

With luck, the Court of Appeal will provide guidance to help employers decide how to deal with an employee who bring grievances in bad faith as a means of avoiding disciplinary action or as a way of causing trouble.

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