Important employment law cases from 2016

Peninsula Team

December 19 2016

Aslam and others v Uber BV and others Although only an employment tribunal decision, this was the highest publicised case of the year. The decision of the tribunal that Uber drivers are not self-employed but are workers entitles them to worker employment rights including minimum wage, working time rights and paid holiday. The judgment scrutinised the relationship between Uber and their drivers based on how it operated in reality, rather than how it was described in documents. Reports suggest that another 25 drivers are planning to bring claims against Uber to gain worker rights whilst Uber have announced they have lodged an appeal against the decision. British Gas Trading Ltd v Lock and another The Court of Appeal agreed with earlier decisions in this case and held that commission should be included in holiday pay. The decision covers ‘individual results based commission’ so includes payments such as a target bonus which is related to the individual’s results during a particular period. As with the other holiday pay decisions, the decision relates to the 4 weeks of annual leave provided by the Working Time Directive only. British Gas is expected to appeal to the Supreme Court. There are still some technical grey areas including the correct calculating reference period when commission schemes pay out on an infrequent basis and which holidays come first in the holiday year, though the Employment Appeal Tribunal commented earlier that it is logical to take the four weeks leave first. G4S Cash Solutions (UK) Ltd v Powell It was previously though that pay protection was not a requirement under the duty to make reasonable adjustments, however, Powell decided that long term pay protection can be a reasonable adjustment to enable the employee to remain or return to work. In this case, the disabled employee was moved to a lower role but maintained their previous higher salary. Around a year later, the employer attempted to reduce the pay to the amount normally paid in that role. The Employment Appeal Tribunal commented that, although it will not be an everyday conclusion, having to make up pay on a long term basis can be a reasonable adjustment, though the financial considerations will have to be weighed in balance by the employer. Reasonable adjustments may require employers to treat the employee more favourably than others in regards to future pay. Peninsula Business Services Ltd v Donaldson As the use of childcare voucher schemes expand, this case provided helpful clarification on what happens when the recipient goes on maternity leave. This particular scheme deducted the employee’s salary in return for childcare vouchers but required joining employees to agree to suspend their membership of the scheme during maternity leave. The employee claimed this was discriminatory. The Employment Appeal Tribunal judged that schemes which deduct salary and convert them to benefits do not have to continue to be paid for by the employer during maternity leave as this will provide a windfall for the employer. The suspension of the vouchers during maternity leave was not discriminatory. Schemes which provide childcare vouchers in addition to normal salary will have to be provided by the employer during maternity leave.

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