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Lydia Banerjee on the 2019 Watch List

As we settle into the daily routine of work life after the peace and goodwill of Christmas it is perhaps worth reminding ourselves about some of the issues and cases to look out for in the coming year.  Not to worry I am not going to crystal ball gaze into a post-brexit future, there wouldn’t be room for the caveats required.  Instead, I will focus on five cases which are already in motion and anticipate their next steps.  So, we consider, legal professional privilege, pay for shared parental leave, worker status and earning in your sleep, enjoy.

X v Y Ltd [2018] UKEAT/0261/17   

2018 saw the EAT decision in X v Y Ltd which Daniel Tatton-Brown QC wrote about at the time.  You can see his overview of the case here.  The EAT held that where legal advice is given for the purpose of effecting ‘iniquity’ it is not privileged and can be relied upon, on the facts of the case, to demonstrate that a redundancy selection was discriminatory.  The case has been appealed to the Court of Appeal and will be of interest to all of us involved in the giving of legal advice.   The public interest and public policy considerations in maintaining privilege in advice will need to be weighed against the seriousness of the iniquity in question.  How the Court of Appeal decide to balance these interests will no doubt be a key decision in the coming year.  The hearing has been set for 31 October 2019.

Capita Customer Management Ltd v Ali [2018] IRLR 586, EAT and Hextall v Chief Constable of Leicestershire Police [2018] IRLR 605, EAT

2018 also saw decisions in the EAT about parental leave pay.  Ali concerned a father seeking to take shared parental leave to allow his wife, suffering from post-natal depression, to return to work.  Mr Ali’s employer offered 14 weeks full pay for maternity leave but only 2 weeks full pay for paternity leave, the remainder of Mr Ali’s leave would be paid at the statutory minimum.  Mr Ali’s claim for direct sex discrimination was successful in the ET but the EAT over turned it focussing on the choice of comparator.  The case is being appealed to the Court of Appeal.

In Hextall the question was whether a similar policy amounted to indirect discrimination.  The EAT considered that the wrong pool had been considered and remitted the matter back to the Tribunal.

The differential treatment of parents taking leave is bound to be an issue for the coming year.  There is an argument that the suppression of pay for men taking shared parental leave undermines the very purpose of introducing shared parental leave.  Rather than enabling families to determine for themselves the best division of childcare men are discouraged from taking the leave because of the low pay rate and women are therefore under pressure to take the leave and adopt the primary carer role.

The two cases will be heard together in the Court of Appeal on 1 May 2019.

Aslam and Ors v Uber BV and others [2018] EWCA Civ 2748 CA

The worker status cases continued through the courts in 2018 with Uber receiving their Court of Appeal decision on 19 December 2018.  The Court of Appeal agreed with the EAT and the Tribunal that the drivers are workers entitling them to national minimum wage, paid annual leave etc.  The Court of Appeal has granted permission to appeal to the Supreme Court, a hearing date is yet to be set.

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad and another (t/a Clifton House Residential Home) [2018] IRLR 932 CA 

In July 2017 the Court of Appeal concluded that workers completing a ‘sleep in’ shift did not, contrary to the findings below, need to be paid the national minimum wage for the shift but only for those parts of the shift when they are required to be awake for the purposes of working.  The case has significant ramifications in the care sector but also in many other sectors where workers are ‘on call’ through a night shift.  Unison lodged an appeal on behalf of the individuals and the Supreme Court is expected to consider it in the coming year.

Finally, of particular personal interest is the Tribunal decision in the case of Jess Varnish v British Cycling and UK Sport.  The decision is expected this month and whichever way it goes it will kick start the worker status debate for 2019.

Wishing you all a wonderful year and looking forward to seeing how these and other cases develop.

Article written by Lydia Banerjee.

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