While 2024 will be a year with a number of employment legislative changes, see our "What's on the horizon for Employment Law Reform? Your 2024 timeline of key changes", there will also be plenty of employment cases to look out for in 2024.
Here, we set out our pick of the top 10 cases to look out for.
1. Settlement agreements – Bathgate v Technip Singapore PTE
Before turning to the judgments we expect to receive in 2024, we begin with one from Scotland that just squeezed into the 2023 judgments of note.
Can you negotiate a deal with an employee to settle a future claim which hasn't arisen yet? In 2022, the Employment Appeal Tribunal (EAT) sitting in Scotland controversially held that the "relates to the particular complaint" requirement for valid settlement agreements does not allow for the settlement of a future claim where the cause of action has not yet arisen. A valid settlement agreement under section 147 of the Equality Act 2010 can only be of either an actual existing complaint or where the grounds for complaint existed when entering into the settlement agreement.
However, on 29 December 2023, the Scottish Court of Session (equivalent to the Court of Appeal) overturned the controversial EAT judgment. The Court of Session has held that the various protections for the employee built into section 147 do not exclude the settlement of future claims so long as the types of claim are clearly identified and the objective meaning of the words used is such as to encompass settlement of the relevant claim. Accordingly, a waiver of future claims is possible provided the waiver is plain and unequivocal that this was intended.
2. Collective bargaining - Mercer v Alternative Future Group Ltd
Are striking workers protected from a detriment short of dismissal? It has long been common practice by some employers to impose a detriment short of dismissal on employees who take part in industrial action. For example, withdrawing discretionary benefits. The EAT cast doubt on the legality of such practices in 2021. However, in 2022 the Court of Appeal restored the orthodoxy confirming that UK legislation does not prevent an employer taking action short of dismissal in response to an employee's participation in industrial action. Yet, the Court did comment that the UK legislation may possibly be in breach of Article 11 of the European Convention on Human Rights (freedom of association).
In December 2023, the Supreme Court considered the further appeal on this issue. This is a highly important appeal for employers with a unionised workforce. Will the Supreme Court agree with the EAT and read words into the existing legislation or agree with the Court of Appeal that it would be impermissible judicial legislative drafting being an issue for Parliament alone?
3. Fire & Rehire - USDAW & others v Tesco Stores Limited
When is permanent, well, permanent? On 23 April, the Supreme Court is set to consider the power of a contractual notice clause. In February 2022, the High Court granted an injunction restraining Tesco from 'firing and rehiring' employees in order to remove a contractual entitlement to enhanced pay known as 'Retained Pay'. The entitlement, which was negotiated as a retention incentive, was stated to be 'permanent' and was intended to last for as long as the employee remained in the same role. In these unusual circumstances, the High Court held that it was appropriate to imply a contractual term preventing Tesco from exercising its contractual right to terminate on notice for the purpose of removing or diminishing the employee's entitlement to the Retained Pay.
However, in July 2022, the Court of Appeal held that as the express terms of the contracts also included a standard termination on notice clause, Tesco was free to give notice in the ordinary way. The employees' entitlement to 'Retained Pay' would only last as long as the particular contract remained in force, rather than the employment (in a colloquial sense) lasted.
Will the Supreme Court agree with the High Court that in these unusual circumstances the ability of an employer to terminate a contract on notice should be restricted? Or will it agree with the Court of Appeal that something more is needed to limit an express termination on notice clause?
4. Employment tax status - HMRC v Professional Game Match Officials Ltd
Does match day = tax day? On 26 and 27 June 2023, the Supreme Court considered whether HM Revenue and Customs were right to have determined that match officials should be taxed as employees in HMRC v Professional Game Match Officials Ltd.
While employment status for employment law purposes has three options, employment status for tax purposes is a binary question: either employed or self-employed. In this case, the Court of Appeal held that whether an individual's contract is a contract of employment for tax purposes is not dependent on there being an overarching or umbrella contract existing between assignments. As such, an individual engagement (in this case a match) could give rise to working under a contract of employment. The question is whether there is sufficient mutuality of obligation and control in relation to each assignment.
This long-awaited judgment has implication for all off-payroll workers. It is hoped that this judgment will provide some much-needed guidance on the level of control, as well as how to interpret the issue of mutuality of obligation within individual contracts when determining the status of engagements. Businesses will need to ensure that their assessment processes are updated to reflect the outcome of this case.
5. Artificial intelligence - Manjang & Raja v Uber Eats UK Ltd
Is it race discrimination to use facial recognition software to verify the identity of platform workers? Modern work practices mean modern employment law issues. One of the potentially biggest is the increased use of Artificial intelligence. Uber Eats operates a facial recognition system for its drivers, As the facial recognition system is significantly more error prone when used by black and minority ethnic workers, does Uber's usage of the system without appropriate safeguards amount to indirect race discrimination? Time will tell.
The case is taking considerable time going through the tribunal process. So far Uber's attempts to have the claims struck out at preliminary hearings has failed. A full merits hearing will hopefully be listed for sometime this year. While employment tribunal decisions are non-binding, they can be a barometer of upcoming trends.
Religion or belief discrimination
The clashing of rights in the workplace looks set to continue as a theme for 2024 as we turn to our second half of cases to look out for which all fall under this banner.
6. Gender identity beliefs - Bailey v Stonewall Equity Ltd
Lawful protest or unlawful inducement? In 2022, a barrister succeeded in her claim against her chambers that she had been discriminated against for holding gender critical beliefs and further because of her belief that gender theory, as articulated by Stonewall, is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted). However, she failed in her claim against Stonewall Equity Ltd for instructing, causing or inducing that discrimination. The tribunal found that the communications from Stonewall critical of Ms Bailey were just a protest and not sufficient to amount to an inducement, or attempted inducement, of any particular course of against her by the chambers.
On 14 May, the EAT will consider when and whether the line between lawful protest and unlawful inducement was crossed. Should Ms Bailey's appeal succeed, this could have wide ramifications for Stonewall's workplace campaigns.
7. Gender identity beliefs – Higgs v Farmor's School
Acceptable or unacceptable manifestation of belief? While those holding a gender-critical belief are protected under the Equality Act 2010 (as are those holding a gender identity belief), the manifestation of such a belief may, depending on the circumstances, be restricted.
In Higgs v Farmor's School, a tribunal found that a Christian employee was not discriminated against due to her gender critical beliefs as her dismissal was not due to her holding of those beliefs, but the inflammatory language used in social media posts. However, in 2023 the EAT allowed Mrs Higgs appeal on the basis it was not enough for the tribunal to find that the employer was motivated by a concern that Mrs Higgs could be perceived to hold "wholly unacceptable views"; it needed to consider whether their motivation had arisen out of Mrs Higgs' manifestation of belief and so protected under the Equality Act 2010, or by a justified objection to that manifestation of belief, and so not protected. The employer has now obtained permission to appeal from the Court of Appeal. We can look forward to Court of Appeal guidance on this difficult issue. To what extent is there a requirement that individuals need to express their beliefs "nicely" in social media posts?
8. Religious beliefs - Omooba v Michael Garrett Associates Ltd
Acceptable or unacceptable manifestation of belief take two? This time regarding religious homophobic beliefs. In December 2023, the EAT considered a tribunal's rejection of an actor's claims for direct and indirect religion or belief discrimination and harassment against a theatre and her agent. The actor was fired from the play 'The Color Purple' and dropped by her agency over a social media storm caused by a historic allegedly homophobic Facebook post that was shared on Twitter. Other members of the play's cast and production team strongly expressed concerns about working with her and the director felt the posts would have an adverse impact on the production (cast trust, audience connection, reduced sales, protests).
It will be interesting to see how the EAT decides this case, given the recent judgments in Mackereth v The Department for Work and Pensions; Forstater v Centre for Global Development Europe and Higgs v Farmor School on the line between acceptable and unacceptable manifestation of beliefs.
9. Anti-'woke' beliefs – Corby v Advisory, Conciliation and Arbitration Service
Is an opposition to 'woke' politics a protected philosophical belief? Another case centred around an increasingly polarised public discourse played out over social media posts. This time the employee's posts were highly critical of what he described as "woke" or "critical theory" approach to racism, which he argued was divisive. Instead he suggested the better approach to anti-racism were anti-racist beliefs based on the ideas of Martin Luther King Jr where people are judged by their character rather than the colour of their skin, and emphasising what people of all races have in common.
At a preliminary hearing in September 2023, the tribunal agreed that the employee's particular anti-racist views were a protected belief under the Equality Act 2010. Simply articulating views another employee finds offensive, does not amount to harassment but drawing the line between a legitimate expression of (potentially unpalatable) views and harassment is not always easy. It will be interesting to see how the tribunal addresses the issues in this case.
Subject to a pending application for permission to appeal to the EAT, the substantive hearing should take place sometime in 2024.
10. Anti-feminist beliefs – Legge v Environment Agency
Is anti-feminism a protected belief? On 15 January, the Watford tribunal began to hear a 13-day hearing of a claims by a male employee alleging he was discriminated against because he does not hold a feminist philosophical belief. The prevailing theme to his claims is that the employer's management were pursuing a feminist agenda, seeking to appoint or promote women rather than men to management positions to which he objected. Again, it will be interesting to see how the tribunal addresses the issues raised.
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