Three employment law cases to look out for in 2023

We are expecting a number of employment-related decisions from the Supreme Court this year. Here are three cases to look out for.

Underpaid holiday pay

At the end of last year, the Supreme Court heard an appeal which could make it much easier for workers to recover historic underpayments of holiday pay from their employers. 

Currently employment tribunals in Great Britain must follow an Employment Appeal Tribunal ruling which prevents workers from joining together a number of underpayments into a single claim, where there is a gap of more than three months between each underpayment. 

While there have been a number of passing comments from the judiciary to the effect that the EAT ruling on this point may not have been correct, people expect the Supreme Court will give a definitive ruling. We don’t know exactly when it will announce its decision, but it is likely to be in the next few months.

Notification of planned redundancies

In March 2023, the Supreme Court will hear an appeal from a High Court ruling 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.

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. Failure to comply is a criminal offence. Company officers are also criminally liable if they consent to or “connive” in the non-compliance, or if it is attributable to their “neglect”.

Prosecutions are rare, and this is believed to be the first reported case where a company administrator has been in the frame. It is therefore likely to raise the profile of these important notification requirements. In addition, if the Supreme Court agrees with the High Court, it may well affect the way mass redundancies are handled by administrators.

Industrial action: detriment short of dismissal

Later in 2023 we expect the Supreme Court to hear an appeal which will determine the scope of the protection for union members taking part in industrial action.

The law – as interpreted by a Court of Appeal decision last year – currently says that while union members are protected from being penalised by their employer for taking part in other trade union “activities”, they are not similarly protected if they are taking part in a strike. Different rules apply if the striking workers are dismissed, when there is some degree of protection. It is also worth adding that there is no suggestion that workers have to be paid for the time they are on strike.

In this particular case, Fiona Mercer was given a written warning by her employer (a health charity) for taking part in industrial action. The Court of Appeal – reversing an earlier decision from the Employment Appeal Tribunal which came to the opposite conclusion – confirmed that there was nothing in our domestic legislation to prevent employers acting in this way, even if the industrial action was official.

Until the EAT surprised us with a new look at the relevant provisions, this is how the law had been understood for many years. That is not to say that disciplining or applying other sanctions to striking workers necessarily makes sense in industrial relations terms. In view of this pending appeal, employers will have another reason to be circumspect. 

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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