Employment Case Law Update May 2021


Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.


Employment status

Somerville v Nursing & Midwifery Council

In Somerville v Nursing Midwifery Council, the Employment Appeal Tribunal considered the test to determine worker status.

The claimant was appointed as a member of the Fitness to Practice panels of the Nursing & Midwifery Council. He brought a claim against the NMC for unpaid statutory holiday pay.

The NMC argued against the claimant’s assertion that he was a worker.

At first instance, the tribunal held that due to the contractual arrangements in place between the parties, the claimant satisfied the definition of a worker under section 230 of the Employment Rights Act 1996 (“ERA”) and regulation 2(1) of the Working Time Regulations 1998.

The NMC appealed that finding on the basis that the claimant could not be a worker under section 230(3)(b) ERA since the existence of an irreducible minimum of obligation was a prerequisite for worker status.

The EAT agreed with the tribunal, on the grounds of case law (including the Supreme Court’s decision in Uber) and the statutory definition being satisfied on the facts.

Although there was ‘no irreducible minimum of obligation’, since the claimant was not obliged to sit for a minimum number of sessions and could withdraw from any dates he had accepted, he was still a worker.

The appeal was dismissed.

The takeaway for employers is that a minimum degree of obligation or commitment is not always required in order for an individual to satisfy the requirements to be classed as a worker.

This decision will be of particular interest to employers using zero hours or casual contracts, especially where there is no minimum commitment expected of the worker.


Indirect discrimination

Wisbey v The Commissioner of the City of London Police and College of Policing

The Court of Appeal has dismissed an appeal on the issue of failure to award the claimant a sum for injury to feelings after a successful claim of unlawful indirect discrimination.

In doing so, the Court held that the Equality Act 2010 is compatible with EU law in dealing with remedies for unintentional unlawful indirect discrimination.

Mr Wisbey was an authorised firearms officer (AFO) and advanced driver in the police. Throughout his employment, he had defective colour vision. Although there was no obvious effect on his ability to perform his duties, in March 2017 his employer removed Mr Wisbey temporarily from his duties as an AFO and later as an advanced driver due to his condition.

Following a number of eye tests, he was reinstated to both duties in February 2018.

Mr Wisbey made a claim of unlawful indirect discrimination, since colour vision disproportionately affects more men than women.

The claim relating to his restricted duties as an AFO was dismissed, while the claim for unlawful indirect sex discrimination in removing him from rapid response driving was upheld and deemed unjustified indirect sex discrimination, although “unintentional”.

Applying s124 Equality Act 2010, the remedies available were a declaration, compensation and a recommendation.

The tribunal declined to make an award of compensation for injury to feelings. The claimant appealed.

On appeal, the EAT considered whether s124 of Equality Act 2010 is incompatible with EU law in not providing an effective remedy nor dissuading employers from discriminating. And, in a case of unintentional unlawful indirect discrimination, whether that incompatibility resulted in a failure to award compensation to the appellant, (who succeeded in establishing unlawful indirect discrimination), for injury to his feelings in this case.

The Court of Appeal disagreed, holding that “if loss or damage have been sustained as a consequence of the indirect discrimination suffered, it is to be expected that compensation will be awarded”.


Legal privilege

Watson v Hilary Meredith Solicitors Limited

The claimant was CEO and director at a firm of solicitors. He made protected disclosures to his employer about alleged financial irregularities and gave notice of his resignation a few months after joining.

Negotiations took place to try to settle the matter, but these were unsuccessful. Mr Watson was summarily dismissed after refusing to return to work from garden leave.

Mr Watson brought tribunal claims for making protected disclosures and for automatically unfair dismissal.

At tribunal, the respondent voluntarily disclosed its privileged legal advice relating to two specific issues; the timing of and reason for the claimant’s dismissal, while maintaining privilege on other matters.

The claim of automatic unfair dismissal for making protected disclosures ultimately failed.

The tribunal held that the protected disclosures had not materially influenced the decision to dismiss, and that the claimant was dismissed due to his conduct following the protected disclosures.

Mr Watson appealed, contending that the ET had erred in law in dismissing his protected disclosure claims, and challenging the tribunal’s refusal to order the respondents to disclose additional privileged documents beyond the ones that they had disclosed voluntarily.

The Employment Appeal Tribunal held that it had been open to the tribunal at first instance to find that the claimant’s actions following the making of the protected disclosures could be severed from the protected disclosures themselves; and it held that the tribunal had not erred in law in its decision on the scope of the waiver of privilege.

The tribunal was entitled to refuse to order the wider disclosure sought by the claimant. There was no unfairness in disclosing privileged material relating to specific issues, provided that there was no ‘cherry picking’.

The appeal was dismissed.


Disability discrimination

All Answers Ltd v W & Anor

The claimants were alleging they had been victims of disability discrimination on 21st and 22nd August 2018.

The respondent disputed the suggestion that the substantial impact on the claimants’ impairments had lasted or was likely to last at least 12 months by the date of the acts of discrimination in August 2018.

The key issue was if the tribunal had assessed whether the effect of the claimants’ mental impairment, assessed as at the material date (the alleged acts of discrimination on 21 and 22 August 2018), was likely to last for at least 12 months.

The tribunal looked at the position as at the date of the preliminary hearing, which was 28 October 2019.

When determining whether an impairment is ‘long term’ for the purposes of assessing disability status, the tribunal cannot consider events after the date of the discriminatory act, according to the Court of Appeal.

The Court of Appeal has allowed the appeal and the case has been remitted to the tribunal.

Need assistance?

If you have a question about employment case law and the impact of tribunal and court decisions on your business, DavidsonMorris’ experienced employment lawyers can help. Working closely with our specialist human resource colleagues, we offer a holistic advisory and support service for employers encompassing both the legal and people risks of workforce management. Speak to our experts today for advice.


Last updated: 26 May 2021


Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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