Key employment cases to look out for in 2023

Last year we witnessed various cases and important decisions affecting the employment legal landscape, including, Rodgers v Leeds Laser Cutting Limited (the first COVID-19-related unfair dismissal case to go to the Court of Appeal); Harpur Trust v Brazel (the Supreme Court case relating to holiday pay for part-time workers); and Tesco Stores Limited v USDAW and Ors (relating to firing and rehiring practices), to name a few. We are expecting to receive decisions this year which are expected to significantly affect employment law: 

Underpayments of holiday pay – Chief Constable of Northern Ireland Police v Agnew  

This case, which has been heard earlier in the Northern Ireland Court of Appeal last year, relates to underpayments of holiday pay where it has been said that a series of deductions is not broken by lawful payments, or by a gap in payments of three months or more. Although decisions at the NI Court of Appeal are not binding on England, Wales and Scotland, this case was heard at the end of last year in the Supreme Court, and if the Supreme Court agrees with the NI Court of Appeal decision, workers will be able to recover underpayments of holiday going back up to 2 years in England, Wales and Scotland. 

Previously, most UK employers have been able to rely upon the EAT’s judgment in BEAR Scotland to limit their holiday payments to a worker’s current holiday year, so the Supreme Court decision could have significant additional liabilities relating to holiday pay for employers. 

Unfair dismissal – Hope v British Medical Association (the BMA) 

It is expected that the Court of Appeal will be hearing this case this year, which will consider if the BMA acted fairly when dismissing Mr Hope for repeatedly bringing “frivolous and vexatious” grievances which he then refused to progress to a formal stage, despite a reasonable management instruction to do so.  

The Employment Appeal Tribunal had agreed with the Employment Tribunal that the BMA had acted reasonably in treating Mr Hope’s conduct as a sufficient reason to dismiss. Although the judgment assists employers who are faced with employees pursuing grievances in bad faith, this case is fact-specific and caution should be exercised, particularly when dealing with discrimination concerns raised in a grievance, where dismissal could potentially give rise to a victimisation claim. 

Agency workers – Kocur v Angard Staffing Solutions Limited 

This case is due to be heard by the Supreme Court this year, which will consider whether regulation 13 of the Agency Workers Regulations provides agency workers with a right to be entitled to apply and be considered for relevant internal vacancies with a hirer on the same terms as direct employees.  

Early, last year, the Court of Appeal agreed with the EAT and held that regulation 13(1) of the Agency Workers Regulations 2010 goes no further than conferring on an agency worker a right to be notified of relevant vacant posts. We await hearing the Supreme Court’s decision on this case. 

Notification of planned redundancies – R (on the application of Palmer (Appellant) v Northern Derbyshire Magistrates Court and another (Respondents) 

In March 2023, the Supreme Court will hear an appeal that a company administrator could be criminally liable for their part in an employer’s failure to notify the Secretary of State of planned redundancies.  

Currently, an employer has a duty to notify the Secretary of State if there are 20 or more redundancies planned at a single establishment over a 90-day period. A failure to comply with the rules on collective consultation can lead to a protective award or a ‘fine’ being made against the employer.  

If the Supreme Court agrees with the High Court, this will largely affect the way mass redundancies are managed by administrators. 

Industrial action protection – Mercer v AFG 

The Supreme Court has granted permission for UNISON to bring a legal challenge that could provide greater protection for striking workers. UNISON is seeking to overturn the Court of Appeal’s judgment of last year which held that protection against detriment on the grounds of ‘trade union activities’ does not extend to strike action.  

The case has not yet been listed but is expected to be heard at the Supreme Court in late 2023. It is likely to be a pivotal decision, particularly with the ongoing industrial action in various sectors.  

Want more? Click on the link to read our recent article on The world of work in 2023 – what can HR expect?

If you require further advice on these topics, please do not hesitate to contact a member of our employment law team.