March 6, 2014


  • Employment status – the appeal to the Supreme Court in Bates van Winkelhof v Clyde & Co LLP from the Court of Appeal decision about whether or not a junior equity partner in a limited liability partnership was a worker for the purposes of bringing a whistle blowing claim, is due to be heard on the 24th March. The Court of Appeal held that she did not qualify as a worker, endorsing the decisions in the lower courts.
  • The Bishop of Worcester is the Second Respondent in the case of Sharpe v The Worcester Diocesan Board Finance Limited and another, which seeks to decided whether or not a minister of religion, a church rector, is an employee for the purposes of a claim for constructive unfair dismissal. The Court of Appeal held, following a previous Supreme Court decision, that there was no longer a presumption that there is no intention to create legal relations between a minister of religion and the church and consequently the case has been remitted to a fresh Tribunal. The Bishop of Worcester is looking to appeal this decision to the Court of Appeal.
  • Also on the religious front, in Peaden v Methodist Church, an Employment Tribunal will determine whether Methodist ministers can pursue claims under the Equality Act 2010 where there is no contract of employment.
  • On the 31st March the Supreme Court will hear an appeal in Hounga v Allen and another regarding a young Nigerian national who entered the UK illegally to work as an au pair where it was held that she could not pursue a race discrimination claim.
  • In FOA acting on behalf of Kaltoft v Billund Kommune, the ECJ will consider the matter of whether obesity can be a disability under the Directive and if so the criteria which are decisive in determining whether or not a obese person is protected by the Directive. In a previous case, the EAT has refused to accept that obesity of itself renders a person disabled, although it has noted that obesity may make it more likely than not that the individual will suffer from a disability.
  • The EAT will consider the case of Griffiths v Department for Work and Pensions and whether the duty to make reasonable adjustments requires an employer to adjust the number of absences which trigger implementing an absence policy where the absences are disability related.
  • An interesting age discrimination case is due before the Birmingham Employment Tribunal, that of Harrod v Chief Constable of West Midlands Police. The claim is for indirect age discrimination bought by 200 former police officers and it concerns the employer’s policy of requiring officers to retire with substantial financial benefits, which has an adverse impact on older officers. The employer has argued that the policy is objectively justified by the need to achieve efficiency savings and the case raises the question whether these efficiency considerations can be distinguished from costs – the "costs plus" rule. The case is currently stayed pending the outcome of another Tribunal case being heard at London Central.
  • The CGEU is expected to give judgment on whether an intended mother who has a baby through a surrogacy arrangement is entitled to paid maternity leave under the EU Pregnant Workers Directive. This has arisen in 2 different cases, CD v ST, and Z v A Government Department and a Board of a Community School.
  • In a case recently reported in the Update, that of Neal v Freightliner Limited the employer has appealed to the EAT over the Tribunal decision that employees should have overtime and shift premiums taken into account when calculating holiday pay. This case is currently in the sift stage of the EAT.
  • The Court of Appeal will hear an appeal regarding service provision changes in Rynda (UK) Limited v Rhijanburger on the question of whether the employee was assigned exclusively to manage a portfolio of commercial properties in the Netherlands. When another company took over those properties, the question was whether her employment transferred and the EAT upheld the Tribunal decision that the transfer was indeed a service provision change. The appeal is due to be heard between March and July.
  • In O-Ceallaigh v St Gregory’s School and others, the High Court will consider the extent to which, if at all, any duty of care is owed by an employer to a school teacher when making disclosures to the police and whether the employer is liable for the teacher’s career loss where those disclosures make their way into the Enhanced Criminal Record Certificates. Employers are obliged to apply for these certificates where any job applicant applies for a role that involves regularly caring for, training, supervising or being solely in charge of, children or vulnerable adults. This Certificate discloses spent and unspent convictions, cautions, reprimands and warnings. The outcome of this case may well have implications for the voluntary and social care sector, as well as schools.
  • The recently reported case of Brito-Babapulle v Ealing Hospital NHS Trust regarding the fact that dismissal is not always a reasonable response to proven allegations of gross misconduct and that mitigating factors should be taken into account is on appeal to the Court of Appeal.
  • In Kavanagh v Charlton Athletic Football Club, the question of whether an employee can resign with notice where the resignation is in acceptance of a repudiatory breach of contract, or whether the acceptance brings the contract to an immediate end is set to be decided by an Employment Tribunal.
  • One law firm has applied for judicial review of the Government’s decision to introduce a cap of the lower of one year’s salary and the current maximum compensatory award for unfair dismissal. In R (on the application of Compromise Agreements Limited) v the Secretary of State for Business, Innovation and Skills the argument is put forward that older people are more likely to be out of work for longer periods and would therefore be more likely to be eligible for more than one year’s salary were it not for this cap; they will also find it harder than younger people to obtain alternative employment.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222


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