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Archive for July, 2015

Monday 27 July 2015

Employment Law Bulletin July 2015


As we enter the summer in earnest, the peak time for employees taking annual leave arrives. Unfortunately the law on calculating holiday pay refuses to get simpler. The latest instalment in the saga comes from the Northern Ireland Court of Appeal which has held that in principle there is no reason why voluntary overtime should not go towards calculating a week’s pay for the purposes of holiday pay – Patterson v Castlereagh Borough Council.

In dealing with voluntary rather than compulsory overtime the case goes beyond the ruling in Bear Scotland v Fulton but it is hardly a surprise. The European Court of Justice has made it clear time and again that holiday pay should reflect what an employee normally receives. If an employee normally works overtime then his or her holiday pay should reflect that fact.

Reporting your own misconduct

Many employees work for more than one employer – although employers are generally entitled to insist that employees either get their permission – or at least inform them – before taking on a secondary role elsewhere. One issue that can then arise is the extent to which one employer is entitled to know about any misconduct issues that have arisen while the employee was working for another employer.

Religious dress at work

Employers are entitled to impose reasonable dress codes on employees – although in doing so they should take account of any religious requirements that a particular employee must observe. Where there is a clash between the needs of the business and the religious needs of the employee then the question is whether the employer can show that complying with its rules is a ‘proportionate means of achieving a legitimate aim’.

Collective Consultation

An employer that is proposing to make 20 or more redundancies at a single establishment must consult with employee representatives about ways of avoiding the dismissals. Failure to do so can result in a tribunal making a ‘protective award’ of as much as 90 days’ (uncapped) pay to each of the dismissed employees.

Transfer of Undertakings

The Transfer of Undertakings (Protection of Employment) Regulations 2006 – TUPE – cause regular difficulties for employers. One important thing to remember is that it is that the employer cannot simply pick and choose which employees are transferred. The process is automatic and all employees who are ‘assigned’ to the contract or undertaking at the time of the transfer will transfer at law – whatever the wishes of the employer may be.

In Jakowlew v Saga Care an employee worked on a care contract that Saga Care held with Enfield Council. After a falling out with her line manager she was suspended and Enfield eventually instructed Saga to remove her from the contract – which they were entitled to do under the terms of their agreement.

Working time and travel to work

When is a worker working? The Working Time Regulations impose limits on working time and also require employers to provide a 20 minute rest break during a working day of six hours or more, an 11 hour rest period between working days and a 24 hour rest period in every 7 days. To meet these requirements an employer needs to be clear about what counts as working time and what doesn’t. It’s also important because the employer needs to be sure that it is paying the national minimum wage throughout any period of working time.

Indirect race discrimination

Indirect discrimination is a difficult legal concept that can flummox even the country’s top judges. On the face of it is simple enough. Indirect discrimination occurs when an employer adopts a provision criterion or practice which places a group sharing a protected characteristic at a particular disadvantage. A claim may then be brought by an individual who suffers the same disadvantage as the group and the issue will be whether the employer can show that the provision criterion or practice was justified. How hard can that be?

And Finally…

You might have thought that if one of your employees was given an 18 month prison sentence for GBH and resisting arrest then a fair dismissal would just be a formality. So, spare a thought for the Fermain Valley Hotel in Guernsey which has been ordered to pay out over £11,000 to their former head chef whose drunken rampage landed him behind bars. The case is reported in the Daily Telegraph and the employer is more than a little annoyed at the ruling. It seems that the Hotel assumed that the prison sentence justified dismissal and did not carry out any investigation of its own or attempt to interview the employee.

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