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Archive for June, 2014

Tuesday 24 June 2014

Employment Law Bulletin June 2014


So, the World Cup is over (isn’t it?) and British sporting hopes turn towards Wimbledon again. What better way to prepare than enjoying a review of the latest employment case law. Not a football-failure-related pun to be seen, we promise …

Lock, take stock and eschew smoking quarrels

British Gas v Lock

After literally months of anticipation, the Court of Justice of the European Union (CJEU) has spoken. It is now clear that where a worker’s pay includes an intrinsic element of commission, that commission must be taken into account when calculating their holiday pay.



Timing of constructive dismissal resignation

Cockram v Air Products plc

Constructive dismissal is, for the employee, the “nuclear option”. Resigning because of an employer’s breach of contract takes courage, conviction and a sound legal argument to back it up. The consequences of getting it wrong can be catastrophic for the employee, so it is not something to be done lightly.



Flexible working rules stretched

From 30 June 2014, the right to request flexible working will be extended to apply to all employees with at least 26 weeks’ service.

The types of requests we are likely to see are for home-working, part-time working and job-sharing. It does not matter why the employee wants to work flexibly, the employer must deal reasonably with their request and only reject it for a small number of set reasons.

Time will tell whether this will open the floodgates to requests, or whether it is another right that is rarely used in practice.


LLP partner can be a worker

Clyde & Co v Bates van Winkelhof

The Supreme Court has now decided that a member of a limited liability partnership can be a ‘worker’. Previously, the courts had held that Ms van Winkelhof – a partner in a law firm – could not be protected by whistleblowing legislation because she did not have the necessary “worker” status.



Care worker’s working time

Esparon v Slavikovska

There have been various cases on whether workers who are required to be ‘on-call’ or to sleep at their place of work are entitled to the National Minimum Wage (NMW) for those hours. They may not actually be working but they are there and available to work if and when needed.



Discrimination did not cause resignation

Clements v Lloyds Bank

Discrimination will nearly always be grounds for constructive dismissal, if the employee resigns in response to it. In Mr Clements’ case, though, an age discriminatory remark was found not to have been the main cause of the employer’s breach of contract that led to his resignation. This was significant because compensation for discrimination-based constructive dismissal is uncapped; in ordinary constructive dismissal it is not.


And finally…


Union to take fees to Court of Appeal

The row about Employment Tribunal fees rumbles on. While employers are rejoicing in the massive reduction in Tribunal claims since the introduction of fees, there is some potential good news for claimants. UNISON, Britain’s biggest trade union, has been given permission to take its tribunal fee challenge to the Court of Appeal.


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