As noted in the previous post, we have a packed legislative schedule for next year in employment law. At least with statutory law employers can plan in advance. However, some of the most surprising legal developments come from case law. So what might the tribunals and courts have in store for us in 2011?

There are (at least) two interesting discrimination decisions in the pipeline. The EAT has reserved judgment in De Belin v Eversheds Legal Services Ltd. The employer has appealed against a tribunal’s decision that it discriminated against a male lawyer when it made him redundant, having giving his female colleague an inflated redundancy score because she was on maternity leave. The EAT’s judgment is likely to shed light on the exemption in S.2(2) of the Sex Discrimination Act 1975 (now S.13(6)(b) of the Equality Act 2010) for ‘special treatment’ for women in connection with pregnancy or childbirth.

Meanwhile, an appeal in a sexual orientation discrimination case, HM Land Registry v Grant, is due to be heard by the Court of Appeal on 9 March. There, the EAT overturned an employment tribunal’s finding that a manager who ‘outed’ a gay employee at work was guilty of discrimination and harassment. It held that the tribunal had failed to take into account that the employee was open about his sexuality when working at another of the employer’s offices. Nor had the tribunal expressed a view on the reasons for the manager’s actions. According to the EAT, both matters were critical to determining whether the employee had been treated less favourably, or suffered harassment, because of his sexuality.

The Court of Appeal is due to hear North West London Hospitals NHS Trust v Bowater towards the end of January. A staff nurse was dismissed for gross misconduct following a suggestive comment she made while straddling the naked genitals of a patient who was suffering from a fit. The tribunal decided that the nurse was unfairly dismissed, finding that the comment was lewd, at worst, but that a large proportion of the population would have considered it to be merely humorous. The EAT allowed the employer’s appeal, holding that other people’s view of the comment was irrelevant – the tribunal should only have considered how the comment would have been viewed by a reasonable employer. The Court of Appeal will have to decide whether the tribunal’s ‘large proportion of the population’ approach amounted to an impermissible substitution of its own view for that of the employer.

In April 2011 the Supreme Court will hear Governors of X School v R (on the application of G) and ors. It will be reviewing the Court of Appeal’s decision that a school employee accused of an inappropriate relationship with a child was entitled – as part of the right to a fair trial under Article 6 of the European Convention on Human Rights – to bring legal representation into his disciplinary hearing. The Court of Appeal noted that Article 6 would not be engaged to assist someone who merely faces losing his or her job. However, since the disciplinary proceedings would have a substantial influence on later statutory proceedings to determine whether the employee should be barred from working with children, potentially affecting his career, an enhanced level of protection was required.

Then, on 22 June, the Supreme Court will have before it Edwards v Chesterfield Royal Hospital NHS Foundation Trust. The case has been combined with Botham v Ministry of Defence, which the Court of Appeal has fast-tracked from the High Court. At issue is whether the case law principle established in Johnson v Unisys – which prevents damages being sought for breaches of contract bound up with a dismissal – precludes a claim for damages for breach of a contractual disciplinary procedure. The Court of Appeal in Edwards held that this ‘Johnson exclusion’ did not apply to breach of an express contractual term, and so did not rule out a claim for career-long loss of earnings based on breach of a contractual disciplinary procedure. In Botham the High Court, on similar facts, arrived at the opposite conclusion. The Supreme Court’s decision will address the extent to which parallel common law and statutory claims are available in respect of a dismissal and the events leading up to it.

Finally, 2011 will bring the next stage (if not necessarily the final stage) in the dispute between British Airways and the trade union Unite. In British Airways plc v Unite the Union – to be heard in the High Court in March – BA is taking the unusual step of pursuing its claim against the union to a full trial for damages in respect of industrial action that took place in 2010. The Court of Appeal allowed that industrial action to go ahead, overturning the High Court’s decision to grant an injunction. BA argues that, notwithstanding the Court of Appeal’s provisional view of the matter, the industrial action was unlawful because Unite had failed to comply with the Trade Union and Labour Relations (Consolidation) Act 1992’s requirements on notifying its members following a ballot.

These are just a handful of the more interesting cases on appeal. We’ll have a fuller selection in a feature article in IDS Employment Law Brief early in the New Year.