Well look, it’s the end of the year (pretty much) and it makes sense to look back on the employment law events of 2012. I’m planning a bit of a rant about how the Beecroft report and the internal politics of the Coalition led to a series of half baked ‘reforms’ that will muddy the employment law waters for years to come, but I thought I’d start with something a bit more positive.
So here are my top ten favourite employment law cases from 2012. I don’t claim that these are the most important cases, its just a personal choice. As my day job (such as it is) is focussed on training, I have different criteria as to what constitutes a good case from many other lawyers. I’m not bothered about how useful the case is as a precedent. What I like is a good story with a moral. I want to be able to tell employers what happened and what that teaches us about how employment law works and how employers should deal with difficult situations. If I can get a laugh out of it, then so much the better.
So my top ten – in reverse order are:
10 Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and ors, (ECJ)
As well as having a catchy name, this case establishes that employees who become ill during annual leave can defer any part of the leave they miss as a result until they return. This leads to a nice routine about someone waking up in Ibeza with a bit of a headache and an upset stomach and calling their employer up to tell them they are having the day off sick. We can then talk about what limitations (if any) the employer can impose on that.
9 NHS Leeds v Larner, (Court of Appeal)
Keeping to the annual leave theme, the Court of Appeal tells us that the default position for an employee who is off sick is that he or she is prevented for that period from taking annual leave which has to be taken when he or she returns. That can mean deferring the leave to the next leave year, irrespective of anything it says to the contrary on the Working Time Regulations.
8. Birmingham City Council v Abdulla and ors, Supreme Court
A great case to talk about to public sector clients who think that they have now dealt with their equal pay problem by negotiating settlements with their current employees. Employees who left up to six years ago will be able to bring equal pay claims in the civil courts based on the dual jurisdiction for equal pay claims set out in the Equality Act.
7.Packman t/a Packman Lucas Associates v Fauchon, EAT
You’d think that since our definition of redundancy goes back to 1965, we’d have a clear idea of what it means. This case neatly illustrates the ambiguity. Do we look at a requirement ‘for employees’ or for a reduction in the amount of ‘work of a particular kind’. We also get to talk about when it matters and how redundancy relates to dismissals arising from the introduction of new terms and conditions.
6. Crawford and anor v Suffolk Mental Health Partnership NHS Trust, Court of Appeal
An average case on a procedurally unfair dismissal makes it into the top ten because of a marvellous judicial rant from Lord Justice Elias on when suspension will amount to a breach of contract. Don’t agree with everything his Lordship says, but its a good basis for discussing what suspension is actually for and how it affects the fairness of any subsequent dismissal.
5 Salford NHS Primary Care Trust v Smith, EAT
In many ways this is just another reasonable adjustment case, but it tees up a discussion about what reasonable adjustments are actually for. Its not about doing nice things for disabled people, its about removing barriers and solving problems. The result should be a successful employee doing a job well, not the employer putting up with an arrangement that makes no commercial sense.
4. HM Land Registry v Benson and ors, EAT
A nice case on the justification of indirect discrimination in which older workers are effectively excluded from a generous voluntary redundancy package because they are too expensive to let go. We get to talk about cost and justification, but also look at balancing the discriminatory effect of the treatment against the employer’s business need. We can also look at the effect on morale when voluntary redundancy schemes are massively over-subscribed.
3. Smith v Trafford Housing Trust (High Court)
A late entry into the top ten that was so much fun I wrote about it here. The case ticks many zeitgeisty boxes – religion, harassment, social media – but also covers compensation for breach of contract and how the imposition of a completely new job description can amount to an express dismissal.
2. Leach v Office of Communications, Court of Appeal
A serious case involving an employee being dismissed for unproven allegations of child abuse based on disclosures made by the police. I cant remember a case which better illustrates that unfair dismissal is not about whether a dismissal is fair on the employee but whether the employer has behaved reasonably – and the two aren’t always the same thing. That can lead to an interesting discussion about risk management and how to deal with anonymous complaints that are potentially very serious
1. London Ltd (formerly Travel London Ltd) v Musse and ors; CentreWest London Buses Ltd v Musse and ors, (EAT)
I don’t know why people think TUPE is boring. This case is brilliant because there was basically nothing the new employer could do to avoid constructively dismissing the employees. The case raises some important issues about constructive dismissal in a TUPE context, and the fact that TUPE has not yet developed a way of coping with changes in location. It’s also fun to see how folk from outside London react to an employee being moved to a depot six miles away – ‘what’s the problem?’ I have to explain that in London six miles is an expedition of Marco Polo proportions – especially if you have to cross the river!
OK so this is my list and hopelessly subjective. I’m sure I’ve missed out loads of really important decisions. Is there any other area of law that reliably provides so much case law to draw upon? Does anyone make their living doing land law updates?
Employers often complain about new regulations. But the fact is that even if the Government did nothing to change employment law for the next five years (and I think that’s an option they should seriously consider) we would still have plenty of new stuff to get to grips with.
Now, onto my Beecroft rant…
In the same vein as the Leach case, I think last week’s Bryant v Sage Care Homes (“it’s not the job of the tribunal to decide if a dismissal is fair”) is a good one to explain exactly what is fair/unfair dismissal (especially for employees/claimants)
I’d also have Assemoi v Spirit Pub Company “bubbling under” (as 70s DJs used to say) – a good example of where an employer can (and can’t) cure a problem in a employment relationship
That’s a good list Darren. I think F W Farnsworth v Lacy & ors (implied restrictive covenants) would have made my top 10 if I’d got round to doing one. The facts weren’t particularly exciting though so would have failed your “make em laugh” test.
Ah well i tend to steer clear of restrictive covenants. Never quite got the hang of them
The point about Musse is not that there was nothing the employee could do or that TUPE cannot deal with changes in location. The purpose of TUPE is to ensure that an employee’s contractual terms and working conditions are maintained following a transfer or, in rare cases, where this is not achieved, to ensure that the employee is compenstated for having a change forced upon her.
TUPE is not designed to punish bad employers who fail to preserve working conditions. It does do that but it is essentially a no fault provision with the primary purpose of protecting employees and compensating them if they experience detrimental changes to which they have not agreed. In the case of bus drivers, if it did not exist, employees could be forced to relocate once every two years.
An interesting selection ,but I always feel that Larner will be irrelevant for most employers (and therefore shouldn’t be too interesting to SMEs, anoraks, or others), as those employers that don’t normally sit back while an employee is off sick for a whole leave year – most employers that aren’t the public sector – would often address the absences sooner.
Given that Hair Division v Macmillan confirmed that if the leave wasn’t applied for before sick leave started (for the same leave year) Larner wouldn’t apply, the case could be of limited importance.
Of course, just as your list is a personal preference, I acknowledge my bias too, but nonetheless I think Macmillan should be a useful case for employers to counter the benefits Larner (and other cases) provided employees.
(I definitely agree with your comments in Musse though: there is nothing boring with TUPE.)
I’m not sure I’m with you on the scope of Larner. I think Larner means that if you are off sick then for that period you are assumed to be prevented from taking holiday. I don’t think you need to be off for the whole year. Suppose I go off sick in February and stay of til December. Can the employer really argue hat I could have taken 4 weeks’ leave in January so Larner does not apply? I don’t think so. MacMillan doesn’t persuade me otherwise because holiday pay was just an incidental to that case and the reasoning is very brief. Also, The Hon Lady Smith is a bit rubbish!
I think the point with Larner is that if I go off sick in January and stay off til October then I have to take holiday in the remainder of the leave year, I can’t just sit back and assume it will carry over.
Of course I may be wrong. This is annual leave after all – no-one really knows what the law is.