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Latest Brief - Week Ending 23 January 2015

The rising cost of holidays?

John Lewis and Waitrose are among the first large employers to change the way they calculate holiday pay for their workers.  They are to include non-guaranteed overtime in its employees' statutory holiday pay from February 2015 and will make a one off back payment for any underpaid holiday taken between November 2014 and February 2015 to prevent any claims.  

The Government has previously announced that it is to limit how long employees can go back in respect of underpaid holiday.  New Regulations will limit any claims for unlawful deductions from pay submitted after 1st July 2015 to 2 years.  This limitation is very welcome for employers since it limits potential exposure after this date.  Until July 2015, employees can claim under paid holiday pay going back potentially to when the Working Time Regulations were originally introduced in 1998, although the recent Bear Scotland v Fulton Employment Appeal Tribunal case prevents unlimited claims.  If there has been a gap of more than 3 months during which an employer has paid the holiday pay correctly, then the employee cannot go back beyond this to claim historic underpayments of holiday.

Revised ACAS code on right of accompaniment

ACAS released a final draft of its amended code on 16th January 2015 relating to changes brought about by a case in which our firm represented the employer!  In Toal and another v GB Oils Ltd [2013] IRLR 696 the Employment Appeal Tribunal held that a worker has an absolute right to choose a companion, provided that they are a fellow worker, trade union representative or official.  Whilst the right to be accompanied is absolute, compensation for any breach may be nominal, as was the case here. 

The absolute right for a worker to choose their companion is not linked to the statutory requirement for the request to be reasonable. 

The new code, which awaits Parliamentary approval provides amongst other things that:

Employers must agree to a worker's request to be accompanied by any chosen companion providing they are a fellow worker, trade union representative or official.

Workers can change their mind on who their companion is. 

Where possible, a worker should provide their employer with the name of the companion and specify whether it is a fellow worker, trade union representative or official. 

Latest Brief - Week Ending 6 March 2015

Drug driving?


It is now illegal in England and Wales to drive when over specified limits for particular controlled drugs. Illegal drugs, including cocaine and cannabis, have very low specified limits while certain medicines have limits set higher than those expected for normal therapeutic doses. A defence is available for someone who is found to be over the prescribed limit but who has been taking drugs in accordance with medical or dental direction and whose driving has not been impaired as a result. Roadside tests followed up by blood tests will be used to provide the necessary evidence.  If found guilty, drivers will face mandatory disqualification and up to six months' imprisonment. This came into force on 2nd March 2015.


It is therefore advisable for employers to check that their driving policies and substance misuse policies reflect the new position.


Suggested increase in National Minimum Wage (NMW)

The Low Pay Commission has recommended that the adult rate of the NMW be increased by 3% to £6.70 an hour from 1 October 2015.


Pornographic email enough to justify dismissal

Williams v Leeds United Football Club [2015] EWHC 376 the High Court had to decide whether a senior employee’s forwarding of a pornographic email some 5 years earlier was enough to justify summary dismissal and therefore defeat his wrongful dismissal claim.  The Court held that this was a sufficient breach by the employee which enabled his employer to dismiss without notice, even though his employer was looking for a reason to avoid paying him his 12 months’ notice pay.


Early conciliation

ACAS has published statistics for the period April to December 2014.
    The status of 37,940 cases notified to ACAS between April and September 2014 as at the end January 2015 was that 16.3% had been settled by ACAS, 23.2% had resulted in claims to an Employment Tribunal and 60.5% had not been pursed.  If you wish to read more about the statistics, see: