Employment Law and Case Review

CIPD Coventry and Warwickshire Branch

August 2015

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Tribunal Statistics

How many claims to tribunal 2013 – 2015?

Tribunal Statistics

Jan. to March 2013 (before fees) - 14,843 cases.

Jan. to March 2015 - 4,878 cases

Change under way?

Change under way?Autumn 2014

• Tribunal power to order Equal Pay Audits• Unpaid leave for two unpaid ante natal

appointments• Reserve forces protection increased – no service

required to claim unfair dismissal.

Sample policy for reservists at: http://www.sabre.mod.uk

Early Conciliation - ACAS

• Introduced April 2014• Legal requirement from May 2014• Free/impartial/confidential/ relatively speedy• Four week initial period• Two week extension by mutual agreement• Certificate issued by ACAS - on agreement,

withdrawal or time expires• Clock stops for tribunal claim time limits

Early Conciliation - ACAS• ACAS dealt with over 83,000 EC cases between April 2014 and

March 2015.

• Of the notifications received between April 2014 and December 2014:-

• 63% did not proceed to a tribunal claim;• a further 15% resulted in a formal settlement; and,• 22% progressed to a tribunal claim• of the 22% in which a claim was issued, more than half (51%)

subsequently settled by way of Acas.

• January to March 2015 – 4878 cases reached employment tribunals

Zero Hours Contracts

Provisions in the Small Business Enterprise and Employment Act 2015 that render exclusivity clauses in zero-hours contracts unenforceable came into force on 26 May.

Various other employment measures have also been brought into force, including an increase in the maximum financial penalty for underpayment of the national minimum wage to £20,000 per worker.

• Workers should have non-guaranteed overtime taken into account when they are being paid annual leave. It may also be that regular voluntary overtime should also be included if it is part of a worker's “normal” remuneration.

• Anybody making a claim must have had an underpayment for holiday pay that has taken place within three months of lodging an employment tribunal claim.

• If a claim involves a series of underpayments, any claims for the earlier underpayments will fail if there has been a break of more than three months between such underpayments.

Bear Scotland Ltd v Fulton EAT 2014

Holiday Rights – the latest!

• Northern Ireland Court of Appeal (July 2015), rules that there is “nothing in principle” to prevent purely voluntary overtime counting towards holiday pay entitlement.

• Overturned the Tribunal decision and sent it back to be reheard and to take account of the Employee’s evidence on his precise overtime arrangements.

Patterson v Castlereagh Borough Council NICA 2015

Holiday Rights – the latest!

• EAT ruled that such leave cannot be carried forward indefinitely and that it may be limited to 18 months' carry forward from the end of the leave year. The Working Time Regs should be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued.

Plumb v Duncan Print Group EAT 2015

Holiday Rights – carry over

Miscellaneous update

The government has introduced the Deduction from Wages (Limitation) Regulations 2014. They do two things:-

(1) limit all unlawful deductions claims to two years before the date the Employment Tribunal claim is lodged; and,(2) explicitly state that the right to paid holiday is not incorporated as a term in employment contracts.

The effect? To remove any chance employees have of bringing long-term claims for back holiday pay, either in the tribunal or civil courts. But the new Regulations don't apply to claims presented before 1st July 2015.

Family Friendly Update

Family Friendly Issues

Changed Ante-natal rights from October 2014

• Unpaid leave for the partner to accompany pregnant woman

• Two visits – half day each time (6 ½ hours!)

Changes to legislation

• Flexible working requests for all – 30 June 2014

• Shared Parental Leave – 5 April 2015• Changes to adoption leave and pay – 5 April

2015• Up to 5 paid pre adoption appointments for the

“Primary Adopter”; two unpaid for the “Secondary Adopter”

• Changes to parental leave – 5 April 2015• Review of paternity leave - 2018

Family Friendly Case Law

• Dependent Leave case. Failure to notify Employer leads to dismissal.

Ellis v Ratcliff Palfinger EAT 2014

• Additional Paternity Leave. Man takes 20 weeks APL and received payment at Statutory rate. Females at Ford Motor Company receive 52 weeks full pay if on maternity leave.

Shuter v Ford Motor Company ET 2014

Race Discrimination updateRacial Harassment• A “one off” remark about a Polish Colleague leads to a

complaint of Racial Harassment.

Quality Solicitors v Tunstall EAT 2014

Caste Discrimination.• Caste is not a freestanding protected characteristic, but

elements of caste identity may form part of an individual's ethnic origin, particularly where caste is determined by descent or contains an identifiable ethnic identity. Therefore caste discrimination may be protected as a form of race discrimination.

Chandhok v Tirkey EAT 2014

Disability update Associative Disability Discrimination

• Court of Appeal confirms that there is no duty on an Employer to make reasonable adjustments to working arrangements in respect of a non disabled employee to enable the employee to cope with the needs of her disabled daughter.

Hainsworth v Ministry of Defence CA 2015

In a similar case (Coleman v Attridge Law), the employee was subjected to direct discrimination connected to her child’s disability

Disability update• Is obesity a disability? The ECJ says it might be..!!!

FOA Kaltoft v Billund ECJ 2014

NB Mr K is 1.7 metres tall (5 foot 6) and over 160 kg (25 stone) – classified as severe, morbid obesity.

“Though I do not accept that obesity renders a person disabled of itself, it may make it more likely that someone is disabled”

Obesity and Disability update

• The first obesity case in the UK following the Kaltoft ruling has been heard. In Bickerstaff v Butcher, Mr. Bickerstaff said he has been harassed by his colleague Mr. Butcher because of his weight.

Bickerstaffe v Butcher NIIT 2015

Disability update• Is Diabetes a disability?

The EAT has overturned an employment tribunal’s decision that an employee’s type 2 diabetes amounted to a disability under the Equality Act 2010. The condition, which was controlled by abstaining from sugary drinks, did not have a substantial adverse effect on the employee’s ability to carry out day-to-day activities.

Metroline Travel Ltd v Stoute, EAT March 2015

• Increased sanction on appeal not permitted

McMillan v Airedale NHS Trust CA 2014

• Failure to provide proper grievance appeal leads to constructive dismissal claim

Blackburn v Aldi Stores EAT 2014

Discipline and Dismissal Cases

Case law update• Woolworths Decision

The ECJ held that 'establishment', in the collective redundancy legislation, refers to an individual workplace, not to the employer as a whole.

So when establishing headcount to see whether an employer needs to engage in collective consultation (required when contemplating 20+ redundancies in a period of 90 days), Woolworths was right to count each store as a separate 'establishment'.  This, in turn, meant that it did not need to engage in collective consultation with staff who worked in a store with a headcount of less than 20.

 

Case law updateWorking Time

• Is attendance at Union meetings in the day, for nightshift workers working time under the WTR? The employer gave time off the night shift either before or after the union meetings. The employer paid the employees for attending the meetings.

Edwards v Encirc Ltd. EAT 2015

Case law updateWorking Time

The EAT overturned an employment tribunal's finding that a trade union shop steward and a health and safety representative were not working for the purposes of the Working Time Regulations when they attended meetings at their workplace between night shifts.

In the EAT's view, the tribunal had adopted an unduly restrictive approach to the questions of whether the employees were at their employer's disposal and carrying out their duties when attending the meetings.

Edwards v Encirc Ltd. EAT 2015

Case law update

Working Time

The Advocate General has given the opinion that travelling workers who have no fixed or habitual workplace should be able to count the time spent travelling from home to the first customer and from the last customer back to their homes as ‘working time’ under the EU Working Time Directive. Travelling is an integral part of the work and it should be regarded as forming part of the workers’ activities.

The AG’s opinion is not binding but is often followed by the Court, which will give its judgment later this year.

Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and anor AG 2015

Case law update

Deductions for strike action The Court of Appeal has decided that the correct amount to

deduct from teachers pay during a recent strike was 1/260th of their pay for each day of strike action, and not 1/365th ..... which had been the position for many years.

NB: 260 is calculated at 52 weeks at 5 days per week!

Whilst the sums for each teacher are small, the decision means the Employers will have to pay around £300,000 less per day of strike action.

Hartley and ors v King Edward VI College CA 2015

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