Range of Reasonable Responses: March 2019
Something struck me this week when delivering an employment law update for a regular client. I had last visited them this time last year and I looked back over last year's content to make sure that everything I was covering this year was new. What I noticed was the number of cases covered in last year's update that had been overturned on appeal. By my count there was Crawford v Network Rail on rest breaks, Royal Mencap Society v Tomlinson Blake on sleepover shifts and the Minimum Wage, London Borough of Lambeth v Agoreyo on suspension as a potential breach of contract and Lee v Ashers Baking Company on sexual orientation - and cakes.
One thing that often strikes non-lawyers as strange is that when a case is overturned on appeal, the courts do not regard themselves as changing the law - they are simply correcting the mistakes of the courts below. Take the issue of whether sleepover shifts count towards the calculation of minimum wage entitlement. Prior to the Court of Appeal's decision in the Mencap case the reasonably settled position was that, by and large, they did count. The Court of Appeal has now ruled pretty clearly that they do not. At some stage - I would guess, early next year - the Supreme Court will reach a definitive view (at least, we hope so). If they overturn the Court of Appeal decision, employers who had been relying on that decision to support the view that sleepover shifts do not count as working time will not be able to argue that they were acting according to the law as it was at the time. The Supreme Court will not have changed the law, just corrected the Court of Appeal's misunderstanding of it. The law will always have been what the Supreme Court says it is. If the decision is overturned, then workers whose pay has fallen short will be able to claim backpay from their employers even for that period when the ruling from the Court of Appeal was that sleepover shifts did not count as work.
So when a big decision comes through it is always worth asking whether this is really the courts' final answer on the question. Big issues can take years to work through the system so it is worth making contingency plans in case of an unexpected final outcome.