The Supreme Court is set to be busy with employment law cases in 2020. Below, we take a look at some of the most important cases coming up this year and why they are significant.
Various claimants v Wm Morrisons Supermarket
In this case, which is the first group litigation to be brought in the UK following a data breach, the Supreme Court will decide whether the Data Protection Act 1998 (“DPA”) excludes an employer from being vicariously liable for a data breach committed by an employee. It will also consider whether the employee’s actions in this case occurred in the course of his employment (and, therefore, whether Morrisons are vicariously liable). The employee in question copied the personal data of nearly 100,000 employees on to a USB stick which he then published online. The Court of Appeal found that Morrisons were vicariously liable even though the employee had acted in a deliberate attempt to damage Morrisons, and even though Morrisons were themselves compliant with the data protection legislation. While this case involves the law as it stood before the GDPR, given the increase in the rights of data subjects under the GDPR, employers should be wary that a Supreme Court finding against Morrisons could well lead to an increase in data breach class actions. This case was heard in November 2019. Judgment is awaited.
Asda v Brierley
This is an equal pay claim brought by around 35,000 Asda employees. The Supreme Court will consider the issue of whether female employees working at retail stores are able to compare themselves to a group of predominantly male distribution depot workers for the purposes of an equal pay claim. While this decision will only determine whether the workers are able to bring the claim (and not, at this stage, whether Asda are actually in breach of equal pay legislation), the outcome will be significant for other supermarkets who are also currently facing similar claims, worth very significant sums, and for employers who have both warehouse and retail operations. The Supreme Court is likely to hear the case in the second half of 2020.
The Supreme Court is set to consider whether it is sex discrimination for an employer to operate a Shared Parental Leave (“SPL”) policy which provides only the statutory rate of SPL pay while having a maternity policy offering enhanced maternity pay. The Court of Appeal ruled that such a policy is neither directly nor indirectly discriminatory. Had this case gone the other way, employers would have been faced with the choice of either increasing SPL payments to match their maternity pay schemes, or reducing maternity pay so that it could not be relied on to improve SPL pay. The Supreme Court hearing on this case is therefore eagerly awaited. A date for the hearing is yet to be confirmed.
The long-running case on whether Uber drivers are workers or self-employed is set to come to a conclusion this year. The Supreme Court will hear the case in July. In 2018, the Court of Appeal held (by majority) that Uber drivers are workers, rather than self-employed, despite the fact that their contractual documentation says differently. Uber were given hope, however, as Underhill LJ disagreed with the majority of the Court of Appeal, arguing that the relationship between Uber and the drivers (as described in the contractual documentation) was neither artificial nor unrealistic. This case will have wide-ranging implications for the gig economy in general and is keenly awaited.