1. Employment Law
Update 2015
James Willis
Head of Employment Law

2. What are we going to cover?
 National Minimum Wage
 ‘Working time’ and holiday pay
 Sickness and absence
management
 Discrimination
 Disciplinary issues
 Collective issues
 Restrictive covenants
 A few loose ends…

3. National Minimum Wage

4. National Minimum Wage
 From 1 October 2015:
 adult rate increased by 20 pence to £6.70 per hour
 rate for 18 to 20 year olds increased by 17 pence to £5.30 per hour
 rate for 16 to 17 year olds increased by 8 pence to £3.87 per hour
 apprentice rate increased by 57 pence to £3.30 per hour
 accommodation offset increased from £5.08 to £5.35 per day
 Largest ‘real-terms’ increase since 2007
 More than 1.4m workers will benefit

5. National Living Wage
 In force from April 2016
 Applies to 25 years + only
 Starts at £7.20 per hour
(increasing to £9.00 by 2020)
 Impact
 Job losses?
 Whitbread (Costa, Premier
Inn) to put prices up
 Manpower – sending
‘shockwaves’
 Living Wage Foundation currently
recommends:
 £8.25 outside London
 £9.40 inside London

6. ‘Working time’ and
holiday pay

7. When does your working day start?
 ‘Working time‘ = (1) at workplace, (2) at disposal of employer, (3) engaged in
work duties
 Federacion de Servicios Privados del Sindicato Comisiones Obreras v Tyco
(ECJ)
 Peripatetic security equipment engineer
 ECJ said ‘working time’ included travel to first and from last appointment
of the day
 Opening the floodgates?
 Impact on pay / on organisation of the working day?

8. Holiday and sickness
Plumb v Duncan Print Group Ltd
 The Facts
 Mr P worked for a printing
company
 Off for 4 years following an
accident at work
 Employment terminated in
April 2014
 Holiday pay for all 4 years?
 The EAT’s decision
 Holiday can accrue during
sickness absence
 Can take it whilst off sick or
carry it forward
 Only applies to 4 weeks’
holiday guaranteed by EU law
 Can only carry forward for 18
months after end of holiday
year

9. Holiday, commission, overtime etc.
 Commission
 Lock v British Gas
 ECJ – Commission should be factored in
 Leicester ET – WTR 1998 is consistent with European Law
 Goes to EAT on 8-9 December 2015?
 Compulsory / non-guaranteed overtime
 Bear Scotland v Fulton
 EAT – Guaranteed / non-guaranteed overtime should be factored in

10. Holiday, commission, overtime etc.
 Patterson v Castlereagh Borough Council
 Court of Appeal (NI) - Even voluntary overtime may need to be
factored in
 WARNING – THIS IS A NORTHERN IRISH CASE
 What about annual bonuses?
 Risk of discouraging people from taking holiday?
 The jury’s out

11. Holiday pay – some good news!
 From 1 July 2015
 Claims can only go back 2 years
 Claims under WTR 1998 cannot be brought in County Court
 So what?
 Risks are more limited and more quantifiable
 Does this encourage you to take action?
 Recent poll – 61.5% of employers yet to change
 Could one of these appeals succeed?

12. Sickness and absence
management

13. ‘Fit for Work’ scheme
 New scheme - still being rolled out
 Aims to help employees stay in / return to work
 2 elements:
 ‘Free, expert, impartial work-related health advice’ (website and
telephone)
 Referral to an OH ‘professional’ for employees off sick for 4 weeks
 GP (or possibly employer) refers for OH report
 Quality of service/report? Too early to tell
 More information?
 http://fitforwork.org/

14. Absence triggers
Griffiths v S/S for Work and Pensions (2014) - EAT
 The facts
 Ms G was disabled (post-viral fatigue/fibromyalgia)
 DWP issued her with a warning under absence management policy
 She argued it was a ‘reasonable adjustment’ to change ‘triggers’?
 The decision
 Reasonable adjustments should enable e’ee to work/return to work
 DWP did not need to vary/dis-apply ‘triggers’
 Decision being appealed to Court of Appeal

15. Discrimination

16. Obesity update
Bickerstaff v Butcher
 The facts
 Mr B subjected to various
comments
 “so fat he could hardly
walk”
 “so fat he would hardly
feel a knife stuck in him”
 Is this disability harassment?
 The decision
 Yes, it is disability harassment
 Comments relate to obesity,
obesity is a disability
 Doesn’t matter that disability
is ‘self-inflicted’

17. Indirect Discrimination
 Home Office v Essop (Court of Appeal)
 Promotion candidates required to sit assessment test
 BME and those over 35 statistically less likely to pass test
 Is that enough to show indirect age and race discrimination?
 No, claimant needs to show why ‘PCP’ has disadvantaged the group and
the claimant

18. Indirect Discrimination
 CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsias
 Case about the height of electricity meters in Bulgaria!
 Does claimant need to possess ‘protected characteristic’?
 Are ‘collateral damage’ claims permissible?
 Equality Act 2010 at odds with ECJ and European Directive?

19. Caste Discrimination
 Draft order was expected by Spring 2015
 Still no sign of when the law might actually change
 Employees may already be protected under race provisions of Equality Act
2010 (Tirkey v Chandok - £183k NMW award!!)
 Do we need legislative change now?

20. Disciplinary issues

21. Disciplinary versus grievance
Jinadu v Docklands Buses
 The facts
 Ms J was a bus driver
 Accused of poor driving and
invited to a disciplinary
 Raised concerns about her
managers
 Docklands dismissed her
anyway
 She claimed unfair dismissal
 The decision
 Ms J argued that disciplinary
should have been ‘stayed’
pending grievance
 Employment Appeal Tribunal
rejected her arguments
 But remember: each case
turns on its own facts

22. The right to be accompanied
 Stevens v University of Birmingham
 Mr S invited to investigation meeting
 Allowed to bring colleague or TU rep only
 High Court ruled this was a breach of mutual trust and confidence
 Inequality of arms, serious allegations, appropriate alternative

23. The role of the HR Department?
Ramphal v Department for Transport
 The facts
 Mr R = aviation security
compliance inspector
 Issues with his expenses
 Mr Goodchild (a manager)
chaired a disciplinary
 HR provided advice; Mr G
changed his decision from
FWW to dismissal
 Mr R brought an unfair
dismissal claim
 The decision
 ET found dismissal to be fair,
but EAT overturned the
decision
 HR went beyond advising on
process/procedure/consistenc
y
 ‘Improper influence’ over
culpability and sanction
 NB Employment Tribunal
disclosure obligations!

24. ‘Social media’ cases
 Game Retail v Laws
 Mr L dismissed for ‘offensive,
threatening and obscene
tweets’
 Private Twitter account, but…
 …used it for work purposes
and ‘followed’ his employer
 ET said dismissal unfair, EAT
overruled
 EAT refused to lay down
guidelines
 British Waterways Board v Smith
 Mr S made derogatory
comments on Facebook about
managers and work
 Said he’d been drinking whilst
on stand-by
 Disciplined and dismissed
 ET said unfair, EAT overruled
 Again refused to lay down
guidelines

25. Collective Issues

26. Collective issues
 USDAW and another v WW Realisation 1 Ltd
 AKA the ‘Woolworths case’
 ECJ says ‘establishment’ can be less than the whole business
 In Woolworths case, ‘establishment’ can be an individual store
 A blow for the unions (and union members)
 New ‘hurdles’ for balloting on industrial action (IA)?
 Ballot only valid if at least half the workers actually vote
 Health, education, fire and transport sectors – TU must show IA has
support of at least 40% of workers entitled to vote and majority of
those who actually vote

27. Restrictive covenants

28. Restrictive covenants
 Re-use Collections Limited v
Sendall & May Glass Recycling
Ltd
 Mr S had no written contract
of employment
 S given a new contract, with
various restrictions
 S left to join a competitor
 Restrictions not enforceable
 No "real monetary or other
benefit" provided for
variation
 Sunrise Brokers LLP v Michael
Rodgers
 Employee effectively
abandons employment during
notice period
 Employer stops paying him,
but keeps contract ‘alive’
 Employee claims that RCs are
unenforceable
 High Court and Court of
Appeal disagree

29. A few loose ends…

30. ‘Zero hours’ contracts
 From 26 May 2015:
 ‘exclusivity clauses’ outlawed in ‘zero hours’ contracts
 Plans to make it unlawful to (i) dismiss employee or (ii) subject worker to
a detriment because they break a term that prevents them from:
 working for another business; or
 doing so without consent.
 Any more for anymore?
 Possibly not

31. Agency workers
 Coles v Ministry of Defence
 ‘Day 1’ right to be notified of permanent vacancies
 Very limited
 Not entitled to be treated the same as employees who apply for the
role
 Moran v Ideal Cleaning Services
 Case that (potentially) drives a coach and horses through AWR 2010
 Appealed to Court of Appeal
 Unlikely to be heard before March 2016

32. Employment Tribunal fees
 Attempts to challenge them in the courts have been unsuccessful (so far)
 Court of Appeal rejected UNISON’s appeal
 MoJ review ongoing – results expected by end of year?
 Scottish Government has announced plans to scrap fees north of the
border

33. Any questions?

34. James Willis
Head of Employment
t: 01293 596931
e: james.willis@stevensdrake.com