10 cases to look out for in 2013
- Redundancy and meaning of establishment – USDAW and others v WW Realisation 1 Ltd Appeal against the decision that when Woolworths closed its stores and made its retail employees redundant, those employees who worked in stores that had fewer than 20 employees should miss out on protective awards for failure to consult collectively on their redundancies. The tribunal had found that each store was an establishment, rather than Woolworths’ nationwide retail operations.
- Redundancy and reasonableness of refusing suitable alternative employment – Devon Primary Care Trust v Readman Appeal against the Employment Appeal Tribunal’s decision that it was reasonable for an employee to reject an offer of alternative employment for personal reasons (she wanted to work in community nursing rather than as a matron in a hospital), despite the fact that it was found to be a suitable alternative role.
- Redundancy and fixed term contracts – University of Stirling v University and College Union Appeal to the Court of Session against the decision that the collective redundancy consultation obligations did not apply to the University’s fixed term employees whose contracts expired on the agreed end date against the background of other redundancies. This was on the basis that they had been dismissed for a “reason relating to them as individuals” (expiry of funding; delivery of specific tasks; maternity/sick leave cover) and not for redundancy. Note that the government’s reform of the collective consultation obligations includes introducing a specific exclusion for employees on fixed-term contracts “which have reached their agreed termination point”.
- TUPE and insolvency – Key2Law (Surrey) LLP v De’Antiquis The Supreme Court will decide whether or not a transfer from a company in administration leads to an exemption from the automatic transfer of employees (the Court of Appeal decided that it did not).
- TUPE – Spaceright Europe Ltd v Baillavoine Appeal against the Court of Appeal decision that, for there to be an automatic unfair dismissal under TUPE, there does not need to have been a particular transfer or transferee in existence or in contemplation at the time of the dismissal.
- TUPE – Parkwood Leisure Ltd v Alemo-Herron The Supreme Court has referred to the ECJ the question of whether Regulation 5 of TUPE 1981 should be interpreted “statically” or “dynamically”. Under the static model, a private sector transferee is only bound by collectively-agreed terms that apply at the date of transfer, whereas the dynamic model would give transferring employees the right to benefit from future pay rises or other changes agreed between the unions and the public sector transferor after the transfer.
- Age discrimination – Seldon v Clarkson, Wright & Jakes The Supreme Court found that a law firm had identified legitimate aims (staff retention, workforce planning and limiting the need to remove partners by performance management) which could potentially justify its compulsory retirement of a partner at the age of 65. The case will now return to the tribunal to decide whether the choice of a mandatory retirement age of 65 was a proportionate means of achieving these aims.
- Equal pay – Dumfries and Galloway Council v North and others The claimants are local authority employees who selected certain male workers employed at a different local authority workplace as their comparators. The question is whether the claimants are in the “same employment” as the comparators for equal pay purposes. The appeal to the Supreme Court is on the grounds that as both the source of the inequality in pay, and the power to rectify the inequality, derive from the same place the claimants should be able to compare themselves with comparators who work at a different establishment.
- Unfair dismissal – Christou and another v London Borough of Haringey The Court of Appeal will consider the appeal in the “Baby P case” in which it was found to be fair to discipline twice for the same offence where new management took a different view of the seriousness of the employees’ conduct.
- Bonuses – Attrill and others v Dresner Kleinwort Ltd and another Appeal against the High Court decision upholding bonus claims by investment bank employees who were told verbally that they would participate in a guaranteed minimum bonus pool subject only to assessment of individual performance. The information given to the employees amounted to a promise that gave rise to a contractual obligation.