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:
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.
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.
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.
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.
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.
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.
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.
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.
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
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…