Summary of Recent Cases in the UK

Workers are protected by whistleblowing legislation if they make a disclosure in the reasonable belief that it is in the public interest. In Underwood v Wincanton plc, the Employment Appeal Tribunal (EAT) confirmed that an employee can be protected under the whistleblowing rules for raising a contractual matter that affects only a small group of employees rather than the public in its entirety. The EAT found that a dispute about terms and conditions of employment could constitute matters “in the public interest”. The case is significant as it effectively reverses the Government’s 2013 reform of the rules which aimed to prevent complaints about an employee’s employment contract attracting the protection of the whistleblowing legislation.
When an employer makes disciplinary decisions in relation to misconduct, it must be consistent in its treatment of employees, otherwise the outcome could be unfair. In the case of MBNA v Jones, the Tribunal heard that J punched B in the face at an event after work. B then sent J a number of aggressive text messages, including a threat to “rip his head off”. B was given a final written warning but J was dismissed and brought a claim for unfair dismissal, citing disparity of treatment. The EAT ruled that when considering issues of disparity of treatment between employees, the Tribunal must focus on whether the employer’s treatment of the employee bringing the claim was fair. The mere fact that the employer was unduly lenient to another employee is neither here nor there.
An employer must collectively consult employees when it proposes to make 20 or more employees redundant at any one establishment in the UK in a period of 90 days or less. Precisely when consultation must begin has been debated in the courts – is it before making the business decision which is likely to result in redundancies, or only after that decision has been made? This month the Supreme Court decided in the case of USA v Nolan that the closure of a US military base in the UK was caught by the UK requirement to collectively consult. This means that the case will now be heard by the Court of Appeal where it is hoped that the important question of precisely when the employer’s obligation to consult collectively arose will be considered. This decision is expected to have important ramifications for businesses facing closure either of a particular site or in its entirety.
When a part-time worker increases their hours, the ECJ in Greenfield v The Care Bureau Ltd decided that when a part time worker increases their hours, their employer is not obliged to recalculate their entitlement to annual leave retrospectively. An employer must distinguish between different periods of different working patterns and calculate the leave that accumulates in each period separately, taking the same approach whether this is during employment, or after it has ended.
The Court of Appeal will hear the appeal of the High Court decision in British Airline Pilots’ Association v Jet2.com that an airline, on which the specified method of collective bargaining had been imposed by the CAC, was not required to negotiate with a recognised trade union over pilots’ roster arrangements.
In De Souza v Vinci Construction UK Ltd the Court of Appeal will also consider whether the discrimination awards for injury to feelings or personal injury in the employment tribunal should be subject to a 10% uplift in the same way as High court awards for civil claims.