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Wednesday 23 July 2014

Employment Law Bulletin July 2014

Welcome

The controversy that is zero-hours contracts rumbles on. Despite some calls for banning them, the government has issued its latest indication of support for these arrangements which it says have a place in the labour market.

It seems that zero-hours contracts (under which employees’ hours are not guaranteed) are here to stay – for now at least. But the Business Secretary, Vince Cable, has announced that exclusivity clauses in these contracts which prevent employees from looking for work elsewhere will be outlawed. This is intended to clamp down on “less scrupulous” employers who have abused the system.

The problem is that it is a toothless ban. An employee who complains about an exclusivity clause can be sacked with no recourse. Before the ban, if there was an exclusivity clause, an employee who worked for another employer was in breach of contract and need not be offered more work by the old employer. After the ban, if there is an exclusivity clause, an employee who works for another employer is not in breach of contract any more (because the clause will be deemed void), and still need not be offered more work by the old employer – because it is still a zero-hours contract.

Zero hour contracts remain a hotly debated issue, at least in political circles. Some people think the balance of power remains too much in employers’ favour and that employees working under zero-hours contracts are unfairly abused by a proportion of employers. At the same time, however, it is recognised that these contracts are delivering work which might not otherwise be offered. Many employers will tell you that their workers like the flexibility that zero-hours contracts afford them.

We have probably not heard the last of this issue, but for the time being it is another case of a lot of hot air being vented, and little actually changing.

 

No reasonable adjustments needed for carers

Hainsworth v Ministry of Defence

It is unlawful to discriminate against a person because of their association with someone who has a protected characteristic (gender, religion or race, for example). But where disability is concerned, is an employer under a duty to make reasonable adjustments in respect of that associated person? The Court of Appeal has said no.

 

New flexible working rules are in

A reminder that all employees with six months’ service now have the right to request flexible working under new rules which came into force on 30 June, with a great deal of talk in the media of this heralding a new age of flexible working.

 

 

Right to holiday pay lives on

Bollacke v Klass & Kock

Another case that will likely give ammunition to those who take the view that EU law is banana-bend-measuring lunacy.

Under EU law, all workers are entitled to take at least four weeks’ annual leave. However, employers must usually pay workers in lieu of accrued but untaken holiday when the worker leaves.

 

Delayed resignation need not forfeit claim

Chindove v Morrisons Supermarkets

Where an employer is in breach of contract it is important that the employee acts quickly in response. If they do not then the employee could be said to have accepted the breach, making any subsequent argument that they resigned in response to a fundamental breach of contract (the essence of a constructive dismissal) difficult to run.

 

 

And finally….

Prepare for a deluge of outraged coverage and weight-related puns when the Court of Justice of the European Union (CJEU) gives its anticipated ruling on whether obesity should be protected by European discrimination law. Current equality laws do not directly protect people who are discriminated against because of their size or weight, but this could change if the CJEU decides in favour of a Danish childminder who says he was sacked for being obese.  

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