the latest briefs.....

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Latest Brief - Week Ending 24 April 2015

Reliance upon earlier warnings to justify dismissal

There has been another case following on from the Court of Appeal decision in Davies v Sandwell Metropolitan Borough Council relating to reliance on earlier warnings.  The Court held in Davies that it was acceptable for an employer to rely on a final warning as long as it had been issued in good faith, where there was at least prima facie grounds for imposing it and that it had not been manifestly inappropriate to issue it. The Tribunal were not obliged to reopen the circumstances of the earlier warning in these circumstances. 

In Way v Spectrum Property Care Limited the Court of Appeal has recently held that an employer could not rely upon a warning given in bad faith to justify the dismissal.  Lord Justice Christopher Clarke said “In my judgment a warning given in bad faith is not, in circumstances such as these, to be taken into account in deciding whether there is, or was, sufficient reason for dismissing an employee. Therefore, an employer would not be acting reasonably in taking into account such a warning when deciding whether the employee's conduct was sufficient reason for dismissing him; and it would not be in accordance with equity or the substantial merits of the case to do so.”

Zero hours contract worker awarded £19,500

Zero hours contracts are often discussed in the news, highlighting the lack of protection for these workers.  However, in Southern v Britannia Hotels Ltd and another, an employment tribunal has awarded £19,500 to a zero hours worker for injury to feelings resulting from gender harassment. While the harassment was not of the very worst type, there were aggravating features. The claimant was young and had fragile mental health. Also, despite raising the issue with senior managers, the inadequate investigation of the complaints and the way in which it was dealt with increased the effect of the harassment on the claimant. 

Latest Brief - Week Ending 10 April 2015

Blowing it – who has to be interested in the disclosure?

Whistleblowing legislation changed for disclosures made on or after 25 June 2013 so that they had to be “in the public interest”.  There have been few cases on this, but a recent Employment Appeal Tribunal (EAT) decision has said that it is not necessary to show that a disclosure was of interest to the public as a whole.  It is likely that disclosures may only be of interest to a relatively small group.  In this case, it was sufficient that 100 senior managers would be interested in the information disclosed.  The EAT emphasised that the public interest inclusion was to prevent workers claiming whistleblowing for raising issues about their own personal contract or position.  It is therefore not necessary for the whole of the public to be interested in the disclosure to fall within the protection of the legislation.  

Employment tribunal fees – the appeals roll on!

The Court of Appeal has granted UNISON the right to proceed with appeals against the decisions of the High Court refusing its two Judicial Review applications challenging the lawfulness of employment tribunal fees. The appeals are expected to be heard in June 2015.  

If the appeals succeed, and the fees are found to be unlawful, the Lord Chancellor has confirmed in the first Judicial Review claim that he would reimburse all fees that have been paid.

Woolworths/ Ethel Austin case on collective redundancy consultation

The European Court of Justice (ECJ) has confirmed that it will give its decision on the meaning of establishment for collective redundancy consultation on 30 April 2015.  The ECJ does not have to follow the Advocate General’s view that “establishment” meant the local employment unit to which the employee was assigned as opposed to the wider meaning of the whole of the employer’s business.  The ECJ can ‘pick and mix’ its own decision but employers are hoping that it will follow the Advocate General’s view.  

Latest Brief - Week Ending 13 March 2015

Holiday Pay and Overtime Update Changes to the law from July 2015

The law will change from July this year, limiting how long employees can go back if they make a claim for previous years’ underpaid holiday, through an unlawful deduction from wages claim.  

At the moment, if an employee has a claim for unlawful deduction from wages, provided he can prove there has been a “series of deductions”, and he brings a claim within 3 months of the last in a series of deductions, there’s no limit on how long he can go back in a claim for back-pay. So in theory, he might be able to claim back to 1998 when the Working Time Regulations (which deal with holiday) came into force.

That rule about being able to claim back-pay for a number of years will change in July this year: any claims for back-pay which are filed from 1st July 2015 will only be able to go back a maximum of 2 years.

In both cases, as the law stands at the moment, there would still be a ‘get out’ to break the series of deductions (and so break how long employees can actually claim back in practice), if there has been a gap of more than 3 months between any unlawful deductions.  

If there might not be a 3 month gap between any holiday pay underpayments, employers may want to consider waiting until July 2015 before making an announcement to employees about the change to the holiday pay calculation.  That way, particularly if there has not so far been any complaint from employees about holiday pay, but formally announcing it might trigger some reaction, if there is any challenge, at least there will a 2 year back-stop on any claims.