After another year of interesting employment cases, there are more important decisions expected in 2023. We summarise a few decisions here which have the potential to alter significant aspects of current employment law in the UK:

1. Chief Constable of Northern Ireland Police v. Agnew

This case, heard in the Northern Ireland Court of Appeal earlier in 2022, concerns the extent to which underpayments of holiday pay can be recovered. Contrary to the position in the rest of the UK, it was decided that a gap of three months or more between alleged underpayments did not necessarily prevent workers from pursuing claims for holiday pay shortfalls prior to the three-month gap.

At present, the judgment is binding only in Northern Ireland so does not bind tribunals in the rest of the UK. However, the case has been appealed to the Supreme Court and that decision will be binding throughout the UK. The appeal was heard in the Supreme Court on 14 December 2022 with the outcome pending. If the Supreme Court agrees with the NI Court of Appeal, this may substantially increase liability for historical underpayments of holiday pay across the UK.

2. Benyatov v. Credit Suisse Securities (Europe) Ltd

Mr Benyatov had been arrested and convicted of an offence while carrying out his duties for his employer in Romania. He claimed that he was owed a duty of care by his employer to protect him from criminal conviction in the performance of his duties. The High Court decided there was no duty of care on the facts of this particular case, but left open the possibility of such a duty being imposed in other factual circumstances. The Court of Appeal heard an appeal against the High Court's decision in October 2022. We await the Court of Appeal's judgment in 2023.

3. Fentem v. Outform EMEA Ltd

In this case, an employee resigned and gave nine months' contractual notice to his employer. During the notice period, the employer exercised its contractual right to terminate his contract immediately and make a payment in lieu of notice of basic salary excluding bonus. Mr Fentem tried to bring a claim for unfair dismissal. Was it a dismissal or a resignation? The EAT found that the employee had not been dismissed. This decision was controversial as it suggests that an employer with a PILON clause in a contract can unilaterally bring a resignation date forward and it will remain a resignation. Leave to appeal to the Court of Appeal has been granted and the case is expected to be heard in the Court of Appeal in 2023.

4. Rodgers v. Leeds Laser Cutting Ltd

This was the first COVID-19-related unfair dismissal case to go to the Court of Appeal. The EAT upheld the original tribunal's judgment that the dismissal of an employee for leaving work and refusing to return because of concerns about COVID-19 was not automatically unfair. The EAT found that the claimant was not within the scope of the protection set out in section 100 of the Employment Rights Act 1996. The employee's appeal was heard by the Court of Appeal in November 2022 and the decision on this important provision is expected to be delivered soon.

5. HMRC v. Professional Game Match Officials Limited

This case concerned the employment status of professional football referees. Were they employed or self-employed for tax purposes? Distinguishing between the two can be challenging but is essential to determine tax status. The Court of Appeal found that, under the precedent set in Carmichael v. National Power, there was no mutuality of obligation in the overarching contract between PGMOL and the referees who performed the services. However, there was sufficient mutuality of obligation in the individual match-day contracts as the referees agreed to personally perform services during the specific match for payment. Entities seeking to engage self-employed workers should keep an eye on the appeal in this case, which is due to be heard by the Supreme Court in June 2023.

6. Hope v. British Medical Association

The EAT found it was fair to dismiss an employee for bringing multiple "frivolous and vexatious" grievances against his managers and refusing to attend meetings to discuss those grievances. This behaviour resulted in a fundamental breakdown in the working relationship. The EAT found there was no requirement to determine whether there had been gross misconduct in a contractual sense (amounting to deliberate wrongdoing or gross negligence). This judgment also assists employers who are faced with employees who bring grievance claims in bad faith as a means of avoiding disciplinary action but is very fact-specific. The case is due to be heard by the Court of Appeal in 2023 with a hearing date yet to be determined.

There are lots of developments to look forward to in 2023 but, in the meantime, if you have any queries about case law or legislative developments coming up in the year ahead, please reach out to our PRM team.