03/01/2023

REVIEW OF THE BIG CASES AND THEMES OF 2022

We have reviewed some of the big cases and themes of 2022.

1. HOLIDAY PAY

Smith V Plimico Plumbers (No. 2) See Judgment here

This is the second iteration of this case – the first case ruled on the preliminary issue of status and found that the plumbers were workers despite being classified as self-employed. This time the GB Court of Appeal was asked to determine if plumbers (now accepted to be workers) who had taken holiday, but were not paid for it, were entitled to bring claims on termination for all holiday pay for leave taken, but not paid.

Harpur Trust v Brazel  See Judgment here

This was a Supreme Court (SC) Judgment and therefore binding in Northern Ireland as well as rest of United Kingdom. The SC held that part year workers, with permanent contract for full year, were entitled to the full 5.6 weeks annual leave which could not be pro-rated to reflect proportion of year worked. Therefore, the accepted 12.07% formula that had been used by many was incorrect for these workers.

Chief Constable of PSNI v Agnew See Judgment here

This is our own Northern Ireland case which at first instant was determined by the now President, Mr Noel Kelly. The case was due to be heard in June 2021. However, parties applied to take it out of list to allow settlement discussions mediated by Sir Paul Girvan QC (retired judge from NI Court of Appeal). Mediation meetings were held but in March 2022 it was announced that the PSNI did not receive required authorisation from Department of Finance. So it returned and was heard by SC on 14 and 15 December 2022. It covers what does and does not amount to a 3 month gap that breaks the chain of deductions, potentially allowing holiday pay claims to go back a long time as Northern Ireland does not have the 2 year back stop currently in place in Great Britain. Agnew give birth to the concept of the ‘composite whole’ – i.e. each holiday day consists of a fraction Working Time Directive leave (20 days), Working Time Regulations leave (8 days) and; additional contractual leave (x Days)

2. TRANSGENDER & GENDER CRITICAL CASES

Forstater v CGD Europe & Others

In 2021 the Courts held that belief sex is immutable was protected philosophical belief. See 2021 Judgment here

In 2022, Ms Forstater was successful in her discrimination claim against CGD Europe in establishing that the decision not to renew her contract was an act of discrimination on ground that she had expressed gender critical views. It found that her expression of those views was appropriate and therefore the decision not to renew her contract was an act of discrimination. See 2022 Judgment here

There were other similar cases which made clear that both views (those who believe that gender is critical and cannot be change and those that believe in the ability to change gender i.e. transgender) are protected. They also emphasis the point that persons have right to hold and express those beliefs, provided they do so in way that does not discriminate, harass and/or breach justifiable internal policies.

Mackereth v Department of Work and Pensions (DWP) See Judgment here

M was Health & Disabilities Assessor for DWP & believed that sex was immutable. M refused to use transgender service users’ preferred pronouns. DWP tried to accommodate him but M resigned and brought claim. EAT found that DWP had not directly or indirectly discriminated or harassed M.

Bailey v Stonewall Equality Ltd & Garden Court Chambers Ltd  See Judgment here

B is a barrister who tweeted in support of gender critical views. Barrister Chambers received complaints and tweeted they were investigating B’s tweets and subsequently found 2 of those were likely to breach Barristers’ core duties. The Tribunal held that B’s gender-critical views were protected and B had right to express those beliefs – provided she did in a way that did not discriminate, which she had not done.

3. COLLECTIVE BARGAINING AND TRADE UNION

Ineos Infrastructure Grangemouth Ltd v Jones See Judgment here

EAT held that a direct pay award to employees, where collective bargaining agreement was in place, was an unlawful inducement as collective process was not exhausted. Ineos had made an offer to union stating that it was their final one. The union (Unite) had told members about the offer, did not formally put it to them for acceptance but asked for agreement to continue discussions, which their members gave.

Mercer v Alternative Future Group Limited** See Judgment here

Court of Appeal held that protection after participating in industrial action only covers dismissal and not action short of dismissal. This case has been granted permission to appeal to the Supreme Court and therefore we would caution reliance on it, until its determined.

4. DISABILITY

Burke v Turning Point Scotland See Judgment here

Tribunal held long covid can amount to disability

Rooney v Leicester City Council  See Judgment here

EAT held Menopause symptoms can amount to disability

5. EMPLOYEE STATUS

Nursing and Midwifery Council v Somerville**  See Judgment here

S was Panel Member on NMC’s Fitness to Practice Committee. NMC had no obligation to offer S hearing dates, S no obligation to accept any offered. Court of Appeal held that when considering worker status there is no need to establish an irreducible minimum of obligation. In other words, there is no need to find obligation to offer or accept work but simply need to find personal service and that the person is not providing services as a business.

**Permission granted to appeal to the SC.**