The Employment Law 2020 Horizon: 10,9,8,7

Author:Ms Connie Cliff and Anna Fletcher
Profession:Gowling WLG

What is on your HR agenda for the year? After three years of relatively few employment law legislative changes, 2020 sees a return to the pre-Referendum level high number of legislative changes employers need to be aware of. Highly significant case law developments are also anticipated, with a number of long-running high profile cases reaching the Supreme Court this year.

With more detail of legislative plans announced in January, Gowling WLG's Employment, Labour & Equalities team brings you a quick round up of the employment law developments that should be on your radar over the next 12 months:

Ten Key Cases

The Supreme Court will be busy with employment law related cases with eight of our 10 2020 key cases:

  1. Royal Mencap Society v Tomlinson-Blake

    Where a worker is required to work a number of "sleep-in" night shifts at the employer's premises, and be available in case of an emergency, does the full night shift constitute 'working' for the purposes of the National Minimum Wage (NMW)? Alternatively, is the worker only 'working' for NMW payment purposes when they are awake to carry out any relevant duties?

    In one of the most controversial employment law cases of 2018, the Court of Appeal overturned numerous Employment Appeal Tribunal (EAT) judgments to rule that the only time that counts for national minimum wage (NMW) purposes during sleep-in shifts is the time when the worker is required to be awake for the purpose of working (Sleeping on the job take two: National minimum wage and 'sleep-in' shifts).

    This surprise Court of Appel judgment had a huge impact on the care sector. Care providers working on small margins concerned about staffing costs and their back pay liabilities were relieved, while often low paid sleep-in workers were disappointed.

    The Supreme Court will now consider the issue on 12 and 13 February 2020.

  2. Uber BV and ors v Aslam and ors

    This long-running case that has become the poster-child for gig economy worker status cases. Back in December 2018, the Court of Appeal upheld the findings to date that Uber drivers are 'workers' entitled to national minimum wage (NMW), paid annual leave, and whistleblowing protection, but only by a majority. A dissenting judgment in favour of independent contractor status suggested all was still to play for with a further appeal surely on the cards.

    The Supreme Court will now consider the tricky issue of 'worker' status for employment law purposes on 22 and 23 July 2020.

    As held by the majority of the Court of Appeal, will the Supreme Court agree that much of the contractual documentation could be disregarded as it did not reflect the reality of the agreed working relationship? Or, as held by the minority, did the contractual documentation reflect the, albeit unfairly disadvantageous, reality of what the parties agreed?

    This judgment will have with important implications for a number of other 'gig economy' employment status cases pending before the tribunals and EAT.

  3. Chief Constable of Leicestershire Police v Hextall

    Where employers offer enhanced contractual maternity pay to mothers, can they only offer statutory shared parental leave (ShPL) pay to fathers? Does a failure to match contractual enhancement for fathers taking ShPL amount to direct or indirect sex discrimination?

    Last year, the Court of Appeal emphatically held that employers who pay enhanced contractual maternity pay but only statutory ShPL pay do NOT directly or indirectly discriminate against men and are not in breach of equality of terms (equal pay) legislation.

    At the centre of this highly significant judgment is the Court of Appeal's conclusion that birth mothers on maternity leave are in materially different circumstances to men (or women) on ShPL, and that this distinction does not simply expire at the end of the two week compulsory maternity leave period.

    Permission to appeal to the Supreme Court is currently being sought. Will the Supreme Court agree to further consider whether there is a point when maternity leave no longer protects a woman's biological condition following pregnancy, or the special relationship between mother and baby, and instead becomes akin to childcare?

  4. Brierley v Asda Stores Ltd

    Most of the large supermarkets are in the grips of large-scale equal pay claims with predominantly female retail shop floor employees seeking to compare themselves with a predominantly male distribution depot employees.

    Can private employers avoid equal pay claims through corporate structures that physically separate female-dominated and male-dominated workforces? Last year, the Court of Appeal confirmed that common terms can apply as between two separate establishments (a store and a depot) not only where they apply to actual employees in the relevant classes working there but also where they would apply, even if the claimant's class of employee would never in practice be employed at the comparator's establishment (and vice versa). For example, an in-store baker would be paid the same even if she was hypothetically employed as a baker based at a distribution depot (it doesn't matter that you would never have a...

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