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Archive for June, 2015

Wednesday 10 June 2015

Employment Law Bulletin June 2015

Welcome

So, the Conservative manifesto promise of “scrapping the Human Rights Act” has been kicked into the long grass quicker than you can say “tuition fees”.

Don’t worry, though – no government in living memory has been able to resist tinkering with employment law to some extent, so these bulletins are unlikely to become redundant anytime soon…

Zero tolerance

As the debate over the rights and wrongs of zero hours contracts rattles on (what, you mean it’s not top of the water-cooler conversation list, over Game of Thrones, FIFA corruption and stunt double dogs in Britain’s Got Talent?), the law has been changed to do away with one particular bone of contention.

As of 26th May, exclusivity clauses where employers include terms in zero hours contracts preventing workers from working elsewhere, are unenforceable.

Pay the wage or a (much bigger) penalty

Also from 26th May, employers who do not pay workers at least the National Minimum Wage (NMW) face a fine of up to £20,000 per worker. We emphasise “worker” because, while the fine itself is not new, its scope is.

It used to be the case that where pay fell short of the NMW, employers could be fined up to £20,000 in respect of a group of workers. Now that the penalty attaches to each worker, the potential liability is of course much higher.

How late is too late?
Higgins v Home Office

Reported cases frequently deal with claimants missing deadlines for lodging claims. Every hour counts where these timescales are concerned, but there are exceptions, as this case shows. It reminds employers that a claim can rear its head many months – or even years – down the line. Claimants with a valid reason for their delay could find themselves able to pursue their claim after all – with the Respondent of course having to defend it.

Disciplinary hearings and grievances
Janadu v Docklands Buses

A common problem for employers is what to do when an employee facing a disciplinary hearing raises a grievance either about the process itself or about one of the managers conducting it. Does the disciplinary have to be postponed while the grievance is dealt with? The reality is that there is no hard and fast rule one way or the other. The test is whether the employer has acted reasonably in choosing to dismiss the employee.

Claimant loses anonymity
BBC v Roden

A cornerstone of justice is that it is an open process. Members of the public can watch and listen to hearings and cases can be reported. There are some exceptions to this, and it is for judges to decide if particular circumstances call for restrictions on the disclosure of aspects of a case.

It was expected that, during the course of Mr Roden’s claims against the BBC, details of alleged sexual assaults (which were not directly in issue) would be heard in evidence. This led to a permanent anonymity order being made, protecting Mr Roden’s identity. The BBC challenged that order. It said that it should be able to inform certain interested parties, including the police and the Disclosure and Barring Service, about the contents of the judgment.

No side-stepping Acas
Cranwell v Cullen

One of the most significant reforms ever made to the Employment Tribunal system has been the introduction of early conciliation. This requires potential tribunal claimants to contact Acas before making a complaint so that Acas can have an opportunity to explore a conciliated settlement. If a claimant fails to do this, then any tribunal complaint will be thrown out without being heard.

Another key development in Lock
Lock v British Gas

What bulletin would be complete without the mention of holiday pay under the Working Time Directive? Not this one. British Gas is appealing the decision in Lock about the inclusion of commission in holiday pay calculations.

And finally…

In a month that saw the Cannes Film Festival in the press for its rumoured ban on flat shoes, employers should take note of the problems the issue of prescribed clothing can cause.

The organisers reportedly say there was no high-heel specification. But the publicity about this non-ban has nonetheless brought dress codes into sharp focus. It is a reminder that any rules about what may and may not be worn – whether at a glitzy affair or in day-to-day office life – must be well-conceived.

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