Employment Law: 2023 Case Update

Employment law is constantly evolving and changing, and 2023 has been no exception, as this feature by Alex Jones, managing director of 365 Employment Law, clearly explains.

In this article, I consider the most important and influential cases that have been decided by the tribunals and courts this year, and what they mean for both employers and employees. I also consider upcoming cases and their possible impact in the future.

Mercer v Alternative Future Group Ltd & Anor

One of the most anticipated cases of the year is Mercer v Alternative Future Group Ltd & Anor1, which will determine the scope of the protection for union members taking part in industrial action. The case concerns an employee who was suspended and disciplined by her employer for taking part in a lawful strike. She claimed that this amounted to a detriment because of her trade union membership and activities, under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The Court of Appeal held that section 146 did not apply to detriments short of dismissal for taking part in industrial action, and that this may put the UK in breach of article 11 of the European Convention on Human Rights, which gives people the right to join a trade union and prevents disproportionate and unjustified action taken against them for doing so. However, the court said that it could not rewrite the law to comply with this.

The Supreme Court will hear the appeal later this year, and will decide whether section 146 can be interpreted in line with article 11, or whether the law needs to be amended by Parliament. This case will have significant implications for employers and employees involved in industrial disputes, as it will clarify the extent to which employers can take action against workers who go on strike.

SME employers also need to remember that Trade Union issues are not exclusively with larger and public sector employers. All employees have the right to be accompanied by a Trade Union representative at meetings, and it is a relatively straightforward process to obtain Trade Union recognition within a workplace.

Kocur v Angard Staffing Solutions

Another case that will be heard by the Supreme Court in December 2023 is Kocur v Angard Staffing Solutions, which will determine whether agency workers have the right to apply for internal job vacancies. The case involves agency staff who worked for Royal Mail, and who were told that they could only apply for published vacancies once permanent staff had had the chance to do so. They claimed that this breached regulation 13 of the Agency Workers Regulations 2010, which gives agency workers a right to be informed of job vacancies.

The Court of Appeal held that regulation 13 did not give agency workers a corresponding right to apply for those vacancies, and that agency staff did not have the right to apply and be considered for internal vacancies on the same terms as directly recruited employees. The only right they had was to receive information about job vacancies.

The Supreme Court will decide whether this interpretation is correct, or whether regulation 13 should be read more broadly to give agency workers equal access to internal job opportunities. This case will affect all employers that use agency staff, as well as agency workers themselves, as it will determine their rights and prospects for career progression.

Other notable cases

There have been various other interesting and important cases decided by the courts this year, covering a range of topics such as discrimination, whistleblowing, unfair dismissal, redundancy, holiday pay, and more. Some of the highlights include:

A v Barclays plc and others, where the Employment Tribunal awarded £4.5 million to a former Barclays employee who was dismissed after blowing the whistle on misconduct within the bank.

Ms L Kaur v Tunmarsh School and London Borough of Newham, where the Employment Tribunal ruled that a teacher was constructively dismissed after being subjected to bullying and harassment by her headteacher.

Mr R Soares v Civil Aviation Authority, where the Employment Tribunal held that an air traffic controller was unfairly dismissed for refusing to work overtime due to health and safety concerns.

Ms T Coombs v Superdrug Stores plc, where the Employment Tribunal found that a sales assistant was sexually harassed by her manager who sent her inappropriate messages and touched her without consent.

Employment law is a dynamic and complex area of law, and 2023 has seen some landmark cases that have shaped its development. Employers and employees should keep up to date with these cases, as they may affect their rights and obligations in the workplace. 

It is also important to remember, that employers of all sizes, could end up being involved in a case on an undecided point of law, which necessitates the importance of dealing with issues early.

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