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Tuesday 29 March 2016

Employment Law Bulletin March 2016

Welcome

Brexit and employment law

It is just possible that you are not already completely sick of the Brexit debate – but don’t worry there is still plenty of time until 23 June. One argument that often crops up is that employers are prevented from running their businesses by “mountains of EU red tape”, with the implication that if there is a no vote, any law with a vaguely European origin will be repealed on 24 June. Employers trying to get to grips with just how to calculate holiday pay under the Working Time Regulations might well appreciate this prospect.

Calculating Holiday pay – Commission

Talking of European employment legislation, few areas have caused as much convoluted case law as the how to calculate holiday pay under the Working Time Regulations, which are the UK implementation of the European Working Time Directive. The latest issue that the Employment Appeal Tribunal (EAT) has had to struggle with is the extent to which holiday pay must include an element representing the commission that the employee could have earned if he or she had not gone on holiday. In British Gas Trading Ltd v Lock the European Court of Justice (ECJ) has already ruled that the Directive requires that commission must be included in the calculation. So, commission must be included. The problem is that the Working Time Regulations say the opposite, so there is a conflict between the Directive and the Working Time Regulations. Usually this sort of conflict is resolved by creatively interpreting the UK law to fit in with the Directive, but this can be difficult to do where – as here- they say opposite things.

Termination by mutual agreement

When is a dismissal not a dismissal? That was the key issue in Khan v HGS Global Ltd. The employee in that case worked in a call centre in Chiswick but the contract on which he worked became the subject of a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The new employer was based in High Wycombe – some distance away – and a number of employees were concerned about their increased journey times.

Trust and confidence

Both employer and employee have a duty not to act in such a way as to undermine the trust and confidence at the heart of the employment relationship. When the employer breaches this duty then the employee can resign and claim a constructive dismissal. When the employee is the one to blame – as the EAT finds in the case of House of Fraser v Christofidou – then the result may be a summary dismissal.

…And Finally

Many employers feel that they could sometimes manage absence somewhat more effectively. They can nevertheless take comfort from the example being set by the Spanish Civil Service. Mr Garcia was due to be given a commemorative plaque for 20 years’ service with the public utilities provider in Cadiz – but when they tried to find him to make the award, it turned out that no-one had seen him in his office for at least six years. It appeared that he had gone home because ‘there was nothing to do’ and stayed there – while continuing to collect his salary.

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