Employment Law Update 2015

James WillisHead of Employment Law

What are we going to cover? National Minimum Wage

‘Working time’ and holiday pay

Sickness and absence management

Discrimination

Disciplinary issues

Collective issues

Restrictive covenants

A few loose ends…

National Minimum Wage

National Minimum Wage From 1 October 2015:

adult rate increased by 20 pence to £6.70 per hour rate for 18 to 20 year olds increased by 17 pence to £5.30 per hour rate for 16 to 17 year olds increased by 8 pence to £3.87 per hour apprentice rate increased by 57 pence to £3.30 per hour accommodation offset increased from £5.08 to £5.35 per day

Largest ‘real-terms’ increase since 2007

More than 1.4m workers will benefit

National Living Wage In force from April 2016

Applies to 25 years + only

Starts at £7.20 per hour (increasing to £9.00 by 2020)

Impact Job losses? Whitbread (Costa, Premier

Inn) to put prices up Manpower – sending

‘shockwaves’

Living Wage Foundation currently recommends: £8.25 outside London £9.40 inside London

‘Working time’ and holiday pay

When does your working day start? ‘Working time‘ = (1) at workplace, (2) at disposal of employer, (3)

engaged in work duties

Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco (ECJ) Peripatetic security equipment engineer ECJ said ‘working time’ included travel to first and from last

appointment of the day

Opening the floodgates?

Impact on pay / on organisation of the working day?

Holiday and sicknessPlumb v Duncan Print Group Ltd The Facts

Mr P worked for a printing company

Off for 4 years following an accident at work

Employment terminated in April 2014

Holiday pay for all 4 years?

The EAT’s decision Holiday can accrue

during sickness absence Can take it whilst off sick

or carry it forward Only applies to 4 weeks’

holiday guaranteed by EU law

Can only carry forward for 18 months after end of holiday year

Holiday, commission, overtime etc. Commission

Lock v British Gas ECJ – Commission should be factored in Leicester ET – WTR 1998 is consistent with European Law Goes to EAT on 8-9 December 2015?

Compulsory / non-guaranteed overtime Bear Scotland v Fulton

EAT – Guaranteed / non-guaranteed overtime should be factored in

Holiday, commission, overtime etc. Patterson v Castlereagh Borough Council

Court of Appeal (NI) - Even voluntary overtime may need to be factored in

WARNING – THIS IS A NORTHERN IRISH CASE

What about annual bonuses? Risk of discouraging people from taking holiday? The jury’s out

Holiday pay – some good news! From 1 July 2015

Claims can only go back 2 years Claims under WTR 1998 cannot be brought in County Court

So what? Risks are more limited and more quantifiable Does this encourage you to take action?

Recent poll – 61.5% of employers yet to change Could one of these appeals succeed?

Sickness and absence management

‘Fit for Work’ scheme New scheme - still being rolled out Aims to help employees stay in / return to work 2 elements:

‘Free, expert, impartial work-related health advice’ (website and telephone)

Referral to an OH ‘professional’ for employees off sick for 4 weeks

GP (or possibly employer) refers for OH report Quality of service/report? Too early to tell More information?

http://fitforwork.org/

Absence triggersGriffiths v S/S for Work and Pensions (2014) - EAT The facts

Ms G was disabled (post-viral fatigue/fibromyalgia) DWP issued her with a warning under absence

management policy She argued it was a ‘reasonable adjustment’ to change

‘triggers’?

The decision Reasonable adjustments should enable e’ee to work/return

to work DWP did not need to vary/dis-apply ‘triggers’

Decision being appealed to Court of Appeal

Discrimination

Obesity updateBickerstaff v Butcher The facts

Mr B subjected to various comments

“so fat he could hardly walk”

“so fat he would hardly feel a knife stuck in him”

Is this disability harassment?

The decision Yes, it is disability

harassment Comments relate to

obesity, obesity is a disability

Doesn’t matter that disability is ‘self-inflicted’

Indirect Discrimination Home Office v Essop (Court of Appeal)

Promotion candidates required to sit assessment test

BME and those over 35 statistically less likely to pass test

Is that enough to show indirect age and race discrimination?

No, claimant needs to show why ‘PCP’ has disadvantaged the group and the claimant

Indirect Discrimination CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot

diskriminatsias

Case about the height of electricity meters in Bulgaria!

Does claimant need to possess ‘protected characteristic’?

Are ‘collateral damage’ claims permissible?

Equality Act 2010 at odds with ECJ and European Directive?

Caste Discrimination Draft order was expected by Spring 2015

Still no sign of when the law might actually change

Employees may already be protected under race provisions of Equality Act 2010 (Tirkey v Chandok - £183k NMW award!!)

Do we need legislative change now?

Disciplinary issues

Disciplinary versus grievanceJinadu v Docklands Buses The facts

Ms J was a bus driver Accused of poor driving

and invited to a disciplinary

Raised concerns about her managers

Docklands dismissed her anyway

She claimed unfair dismissal

The decision Ms J argued that

disciplinary should have been ‘stayed’ pending grievance

Employment Appeal Tribunal rejected her arguments

But remember: each case turns on its own facts

The right to be accompanied Stevens v University of Birmingham

Mr S invited to investigation meeting Allowed to bring colleague or TU rep only High Court ruled this was a breach of mutual trust and

confidence Inequality of arms, serious allegations, appropriate

alternative

The role of the HR Department?Ramphal v Department for Transport The facts

Mr R = aviation security compliance inspector

Issues with his expenses Mr Goodchild (a

manager) chaired a disciplinary

HR provided advice; Mr G changed his decision from FWW to dismissal

Mr R brought an unfair dismissal claim

The decision

ET found dismissal to be fair, but EAT overturned the decision

HR went beyond advising on process/procedure/consistency

‘Improper influence’ over culpability and sanction

NB Employment Tribunal disclosure obligations!

‘Social media’ cases Game Retail v Laws

Mr L dismissed for ‘offensive, threatening and obscene tweets’

Private Twitter account, but…

…used it for work purposes and ‘followed’ his employer

ET said dismissal unfair, EAT overruled

EAT refused to lay down guidelines

British Waterways Board v Smith Mr S made derogatory

comments on Facebook about managers and work

Said he’d been drinking whilst on stand-by

Disciplined and dismissed

ET said unfair, EAT overruled

Again refused to lay down guidelines

Collective Issues

Collective issues USDAW and another v WW Realisation 1 Ltd

AKA the ‘Woolworths case’ ECJ says ‘establishment’ can be less than the whole business In Woolworths case, ‘establishment’ can be an individual store A blow for the unions (and union members)

New ‘hurdles’ for balloting on industrial action (IA)? Ballot only valid if at least half the workers actually vote Health, education, fire and transport sectors – TU must show IA

has support of at least 40% of workers entitled to vote and majority of those who actually vote

Restrictive covenants

Restrictive covenants Re-use Collections Limited v

Sendall & May Glass Recycling Ltd Mr S had no written

contract of employment S given a new contract,

with various restrictions S left to join a competitor Restrictions not enforceable No "real monetary or other

benefit" provided for variation

Sunrise Brokers LLP v Michael Rodgers Employee effectively

abandons employment during notice period

Employer stops paying him, but keeps contract ‘alive’

Employee claims that RCs are unenforceable

High Court and Court of Appeal disagree

A few loose ends…

‘Zero hours’ contracts From 26 May 2015:

‘exclusivity clauses’ outlawed in ‘zero hours’ contracts

Plans to make it unlawful to (i) dismiss employee or (ii) subject worker to a detriment because they break a term that prevents them from: working for another business; or doing so without consent.

Any more for anymore? Possibly not

Agency workers Coles v Ministry of Defence

‘Day 1’ right to be notified of permanent vacancies Very limited Not entitled to be treated the same as employees who apply

for the role

Moran v Ideal Cleaning Services Case that (potentially) drives a coach and horses through AWR

2010 Appealed to Court of Appeal Unlikely to be heard before March 2016

Employment Tribunal fees Attempts to challenge them in the courts have been

unsuccessful (so far) Court of Appeal rejected UNISON’s appeal

MoJ review ongoing – results expected by end of year?

Scottish Government has announced plans to scrap fees north of the border

Any questions?

James WillisHead of Employmentt: 01293 596931e: james.willis@stevensdrake.com