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EMPLOYERS UPDATE: DEVELOPMENTS IN EMPLOYMENT LAW JANUARY 2018

Happy New Year.

I have changed the format slightly this quarter and am setting out a number of snippets of information that might be of interest.

 

Bereavement Leave

A Private Members Bill, the Parental Bereavement (Leave and Pay) Bill has passed its second reading.  It is supported by the Government and therefore might well become law.  It provides for employed parents who have lost a child under the age of 18 to be entitled to at least 2 weeks’ leave along with other entitlements, subject to eligibility criteria.

 

Working Time – Rest Breaks

The European Court of Justice (ECJ) has held in Maio Marques da Rosa -v- Varzim Sol‑Turismo, a Portuguese case, that the requirement in the Working Time Directive for a worker to be given 24 hours’ clear rest in a 14-day period means that 12 hours’ rest could be given at the beginning of one 7-day period and then at the very end of the following 7‑day period.  That means that the worker could legally be asked to work for 12 consecutive days without rest.

 

Unfair Dismissal for Illegality

A “potentially fair” reason for dismissal arises where “the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment”.

The employee in the Employment Appeal Tribunal (EAT) case of Baker -v- Abellio London was unable to produce his right-to-work documentation although he was not actually subject to immigration control and had the right to live and work in the U.K.  He was consequently dismissed.

The EAT determined that the dismissal was unfair on the “illegality” ground.  Since the employee was not subject to immigration control then, technically, there was no legal obligation on him to produce his documentation (although the employer was right to request it).  The EAT sent back to the Tribunal the question of whether the dismissal was nevertheless fair as being for “some other substantial reason”.

 

Employment – Worker Status

This is a hot topic.  An Employment Tribunal (ET) adjudged that an Uber driver, although not an employee, was nevertheless a worker and therefore entitled to certain rights.  Uber appealed the Judgment to the EAT but lost.  It is going to appeal further.

On the other hand, the Central Arbitration Committee decided that Deliveroo drivers were not workers for the purpose of a Union’s application for compulsory recognition.  What was found conclusive in that case was the existence of an “almost unfettered” right on the part of the rider to provide a substitute if he was unavailable.

 

Holiday Pay

The law relating to paid holiday and holiday pay is more complicated than it ought to be.

This is another ECJ case, although this time referred by our Court of Appeal in the case of King -v- The Sash Window Workshop Limited.

Mr King worked as a commission-only salesman for 13 years.  He was never paid for any holiday or periods of sickness absence since no-one thought he was entitled.  The company terminated the arrangement when he reached 65 and Mr King subsequently claimed for age discrimination and unpaid holiday pay.  He won on both counts.

Mr King was found to be a worker under the Working Time Regulations and the case made its way through the EAT and the Court of Appeal before being referred to the ECJ.

The finding there was that he was entitled to claim outstanding holiday pay for the entire period of his engagement, around 52 weeks’ worth.

Against this background, it is no wonder that companies like Uber are keen to avoid findings that their people are, in fact, “workers”, as Mr King was.

 

Whistleblowing

The EAT case of Parson -v- Airplus International Limited is a reminder that it is a prerequisite of a whistleblowing case that the disclosure has to be made in the public interest, rather than in the self interest of the individual.

 

Employment Tribunal Statistics

When ET fees were introduced in 2013, the number of claims issued fell by 70%.  The intention was to reduce unworthy claims.  Subsequently, of course, the imposition of fees has been held to be unlawful and they have been abolished.

In the latest set of quarterly statistics since that abolition, it has been found that the number of Employment Tribunal claims issued by a single applicant has increased by 64%.

As I tweeted (@copleyclark) I remain of the view, based on my experience at the Kingston Citizens Advice Bureau, that there remain more claims that should be brought but are not than claims that should not be brought but are.

 

Protected Conversations

So long as the correct procedure is followed, an employer can make an offer to an employee of terms of severance so that evidence of the offer cannot be brought in an unfair dismissal claim.  In the absence of this rule, the employee would be entitled to argue that any disciplinary, capability or redundancy or procedure that followed was clearly prejudged if the employer had already intimated that it would like him to leave.

The employer’s position has been undermined to some extent in the EAT case of Basra -v- BJSS Limited.  There, a dispute arose as to whether the employee had been dismissed, had resigned or his employment had ended by mutual termination.

The Protected Conversation Procedure is fraught with risk and needs to be exercised carefully.

 

Increase in Rates

From next April, Statutory Maternity, Paternity, Adoption, Shared Parental Pay and Maternity Allowance will all rise from £140.98 a week to £145.18.

At the same time, statutory sick pay goes up from £89.35 a week to £95.05.

As always, these newsletters are only a guide to some changes in Employment Law.  They are by no means exhaustive nor an alternative to getting proper advice about your particular problem.  Expressions of opinion are to be taken as my own and do not necessarily represent the view of the firm.  Please call me for more help on any employment matter.

 

With best wishes,

MALCOLM LAWRENCE

mjl@copleyclark.co.uk

Posted in: Employment

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