So, the World Cup is over (isn’t it?) and British sporting hopes turn towards Wimbledon again. What better way to prepare than enjoying a review of the latest employment case law. Not a football-failure-related pun to be seen, we promise …
Lock, take stock and eschew smoking quarrels
British Gas v Lock
After literally months of anticipation, the Court of Justice of the European Union (CJEU) has spoken. It is now clear that where a worker’s pay includes an intrinsic element of commission, that commission must be taken into account when calculating their holiday pay.
Mr Lock was a salesman who earned commission based on hours worked and sales achieved. He had brought a holiday pay claim for commission he would have earned if he had been working, but which he could not because he was not. This launched the big question of whether commission should form part of ‘basic pay’ and so be taken into account in holiday pay calculations.
The CJEU has held that it definitely does. It is now down to the UK courts to implement that decision and to decide how holiday pay should actually be calculated.
As with most holiday pay issues, the concept sounds simple, but the practicalities can be mind-bending. If you have workers whose pay includes a variable element such as commission, you should be reviewing your terms now, to see if you have a problem (the easy bit) and then decide what to do about it (not so easy). As ever, we are here to help if needed.
Timing of constructive dismissal resignation
Cockram v Air Products plc
Constructive dismissal is, for the employee, the “nuclear option”. Resigning because of an employer’s breach of contract takes courage, conviction and a sound legal argument to back it up. The consequences of getting it wrong can be catastrophic for the employee, so it is not something to be done lightly.
Mr Cockram may have feared the uncertainty of unemployment when he took the decision to resign. His employer had rejected his grievance and this, Mr Cockram said, was a fundamental breach of the implied term of trust and confidence between the two of them. But rather than resign and leave straight away, or after giving his three-months’ contractual notice (as is also acceptable in a constructive dismissal), he told his employer that he would carry on working for seven months. The reason was that he had no other job to go to.
Could that be a constructive dismissal? No, the Employment Tribunal Appeal said. By giving longer than the minimum amount of contractual notice, Mr Cockram had affirmed the contract. He had, in effect, sidelined his employer’s breach and could not then use it as the basis of a constructive dismissal claim.
This is a logical decision, useful in bringing to light the question of notice. But remember that, generally speaking, an employee who chooses to give notice may still have a constructive dismissal claim if (a) the notice is no more than their contractual notice, and (b) they make it clear that they are resigning in response to their employer’s fundamental breach of contract – and that they do not accept the breach. It is also useful to bear in mind, too, that the employee’s actions or omissions during the notice period could affect their constructive dismissal claim.
Flexible working rules stretched
From 30 June 2014, the right to request flexible working will be extended to apply to all employees with at least 26 weeks’ service.
The types of requests we are likely to see are for home-working, part-time working and job-sharing. It does not matter why the employee wants to work flexibly, the employer must deal reasonably with their request and only reject it for a small number of set reasons.
Time will tell whether this will open the floodgates to requests, or whether it is another right that is rarely used in practice.
LLP partner can be a worker
Clyde & Co v Bates van Winkelhof
The Supreme Court has now decided that a member of a limited liability partnership can be a ‘worker’. Previously, the courts had held that Ms van Winkelhof – a partner in a law firm – could not be protected by whistleblowing legislation because she did not have the necessary “worker” status.
The decision is significant because it now opens up employment law protection to a wider group of people, particularly those in legal and financial businesses (commonly LLPs), who did not think they were entitled to it. What is still unclear is whether LLP members can be employees (our view – sometimes), or whether worker status extends to those in traditional partnerships (less likely).
The ramifications of the decision, however, are that organisations may need to reassess their provision of benefits like auto-enrolment, working time rights and unlawful deduction from wages protection and make sure these are available to this wider category of worker.
Care worker’s working time
Esparon v Slavikovska
There have been various cases on whether workers who are required to be ‘on-call’ or to sleep at their place of work are entitled to the National Minimum Wage (NMW) for those hours. They may not actually be working but they are there and available to work if and when needed.
The law is not entirely clear on what is and is not ‘time-work’ for the purposes of the NMW regulation. The Esparon case may help clarify it a little.
Ms Slavikovska was a care worker who was paid less than the NMW for night shifts spent at the care home where she worked. She brought an employment tribunal claim, arguing that the hours she had put in amounted to ‘time-work’ which attracted the NMW. (‘Time-work’ is different from time spent ‘on-call’, which will not in its entirety amount to working time.)
The Employment Appeal Tribunal held that Ms Slavikovska’s sleep-in shifts were ‘time-work’. In cases like this, the circumstances are important and the tribunal will look carefully at what exactly the worker is required to do and when during the course of the shift and, crucial to Ms Slavikovska’s case, why the employer needs the worker to be there during then night.
Like most, if not all, care homes Esparon was legally required to have staff in the facility at all times, so Ms Slavikovska was helping her employer discharge that obligation. That swung the decision in her favour. Even though she may not have always been actually working (she may have been sleeping), she was still entitled to the NMW during those hours because of the requirement that she be on the premises.
Discrimination did not cause resignation
Clements v Lloyds Bank
Discrimination will nearly always be grounds for constructive dismissal, if the employee resigns in response to it. In Mr Clements’ case, though, an age discriminatory remark was found not to have been the main cause of the employer’s breach of contract that led to his resignation. This was significant because compensation for discrimination-based constructive dismissal is uncapped; in ordinary constructive dismissal it is not.
Mr Clements was in his fifties. His employer was attempting to resolve problems with his performance by moving him to a new role. During the course of one of their meetings, his manager twice remarked “you’re not 25 any more” (later denying saying this). Over the course of the following few months Lloyds heard and rejected Mr Clements’ grievance and announced that someone had been appointed to a role above him, meaning that he had been demoted. Six months after the discriminatory “25” comment, Mr Clements resigned.
The Employment Tribunal held that he had been constructively dismissed because of a course of action which accumulated and resulted in the “last straw” of the demotion announcement. But age discrimination did not play a part in the constructive dismissal. Mr Clements appealed that point to the Employment Appeal Tribunal (EAT), but lost. Far more had happened by the time of the resignation, the EAT said. While the “25” comment was an act of age discrimination, it did not cause his constructive dismissal.
Union to take fees to Court of Appeal
The row about Employment Tribunal fees rumbles on. While employers are rejoicing in the massive reduction in Tribunal claims since the introduction of fees, there is some potential good news for claimants. UNISON, Britain’s biggest trade union, has been given permission to take its tribunal fee challenge to the Court of Appeal.
A few months ago the High Court decided that there was not enough evidence to support UNISON’s claim that the fees regime, introduced last July, is unfair. The union has argued that fees deny people access to justice and disproportionately affect women. Given the 79% drop in the number of claims issued in the first six months after fees were brought in, there are real concerns that people with legitimate claims are being put off pursuing them, or simply cannot afford to.
For now, the issue is in the hands of the Court of Appeal.