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Monday 10 November 2014

Employment Law Bulletin November 2014

Welcome

You are unlikely to have been able to avoid the recent headlines announcing that workers can sue their employers for millions of pounds in holiday back-pay claims, going all the way back to the 1990s. But is this really the Euroemploymentlawdisaster that we are led to believe? As so often with such things, the answer is “mostly, no”. However, as with anything to do with the laws on holiday pay, the detail is complex, often mind-bendingly so.

In the UK, we usually calculate holiday pay based upon a worker’s basic salary – but we do not normally include overtime, commission or similar payments. However, a series of recent judgments have made it clear that the European Directive on working time requires employers to factor in overtime and commission payments – and anything else a worker would normally receive if they were working – so they are not dissuaded from taking holiday by being paid less when on holiday than when at work.

Much of the fevered commentary has, however, missed out two crucial points.

First, the higher holiday pay rate only applies to the first four weeks’ paid holiday each year (including bank holidays). The employer can continue paying basic salary for any additional annual leave (although note the rules are slightly different if the employee does not have normal working hours).

Second, employees are very unlikely to be able to bring the scary-sounding claims for huge amounts of underpaid holiday pay, going back years, as has been excitedly reported. The most recent Employment Appeals Tribunal decision makes it clear that a three month gap in holiday underpayments is enough to stop a claim going any further both in time. In practice, very few workers will have taken the right holiday at the right intervals in order to enable to sue for such historic amounts.

It is a serious and potentially costly issue from now on, though. All employers should be examining their holiday pay arrangements to ensure that they understand how they are affected and what they should do to minimise the cost exposure. As ever, we’re here to help.

Ill-health absences and disability

General Dynamics Information Technology Ltd v Carranza

It is notoriously difficult to judge when it might be right to call time on a frequently absent employee’s service. That is even more so where the employee is disabled, because of the extra layers of responsibility placed on employers to ensure fairness.

Mr Carranza suffered from stomach adhesions – a disability. His employer had made adjustments for his condition. But after being off work for 41.5 weeks in three years (mostly, but not solely, disability-related) he was given a final written warning.

Duty of care in misconduct proceedings

Coventry University v Mian

Ms Mian argued that her employer had breached its duty of care in instigating disciplinary proceedings against her without properly investigating the facts.

Ms Mian was a senior lecturer at the University. It was alleged that she had signed an inaccurate reference which overstated an ex-colleague’s qualities and qualifications. There was some confusion about how the reference came into being and Ms Mian denied writing the final version, although similar drafts were found on her computer.

 

Substituted PILON did not alter termination date

Rabess v London Fire and Emergency Planning Authority

The date on which employment terminates is important for all sorts of reasons. One of these is to establish the time within which to bring an employment tribunal claim – usually three months from the effective date of termination (EDT). In this case there was disagreement over when termination took effect and when, therefore, the tribunal claim clock began ticking.

Business needs are relevant too

Hensman v Ministry of Defence

Tribunals often hear cases involving employees, convicted of criminal offences, who have gone on to be dismissed from their jobs. In Hensman v Ministry of Defence, the Employment Appeal Tribunal (EAT) tackled the issue of an employee whose criminal conduct was attributable to his disability. Was the tribunal right to find that the dismissal was discriminatory and unfair? No, the EAT said.

No jurisdiction to hear employee’s claim

Creditsights v Dhunna

There are certain hurdles every employment tribunal claim must overcome before it can get anywhere near a final hearing. The first of these is the claimant’s entitlement to bring the claim in the first place. Many jurisdictional issues can come into play – e.g. has the claim been brought within the appropriate time limit, was the claimant actually an employee, etc. Raising such issues at the appropriate time can be a very effective tactical weapon, since if successful they can often dispose of some or even all of the claims.

Serial Litigant gets his just desserts

Her Majesty’s Attorney General v Iteshi

The Employment Appeal Tribunal has heard the case of a claimant who issued a series of unsuccessful claims which are reckoned to have cost his opponents a combined total reaching into six figures.

Mr Iteshi brought 30 cases in four years against employers, recruitment companies, and the Bar Council following a number of failed job applications. He has now been banned indefinitely from making any further claims because of his track record in bringing what were described as vexatious or hopeless cases.

 

Safe monitoring

The Information Commissioner’s Office (ICO) has updated its Code of Practice on the responsible use of surveillance. The changes take account of the changing face of technology in this field, which now includes sophisticated digital and portable devices, rather than simply “a camera on top of a pole…”

And finally……

 Shared parental leave

Just in case you thought you’d got away this month without a mention of shared parental leave…..

Acas has issued guidance on the new shared parental leave and pay provisions. The key date is 1 December 2014, when the new regulations come into force, which is disturbingly close! From then, mothers, fathers, partners and adopters will be gearing up to exercise their right to share leave in respect of babies born or placed through adoption on or after 5 April 2015.

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