When I can, I provide regular updates about interesting
legal opinions and decisions in addition to news about any changes to my services. Usually though, I'm pretty busy - so why not contact me on my quick query form instead? [last edited 17 March 2017]. Please note that the opinions provided below are not legal advice and are for information only; if legal advice is required on any of the areas treated it must be specifically requested using my
QUICK QUERY FORM.
If you are a commission based worker, and your commission is directly linked to your results, the Supreme Court (by refusing an employer's appeal application) has just confirmed that you should be getting holiday pay which includes an amount for the commission you would have earned. In the case concerned, 60% of the worker's pay was commission based, so that is a significant amount to lose in holiday pay. Check your commission agreements and your contracts, and make sure you are getting the right holiday pay.
There has been about a 70% drop in employment tribunal claims since the government brought in tribunal fees. It's important to remember though, that if you are on a lower income, you can apply for a reduction or complete exemption from the fees. If that is not successful, I have recently been successful in a couple of cases in getting exemptions on the basis of exceptional hardship. So even if your earnings disqualify you from exemption from the fees, if you can show for instance that you wouldn't be able to pay your bills that month, an exceptional hardship application can succeed."
A recent case has reiterated the need to be careful about time limits, when making a claim in the employment tribunal. The tribunal confirmed that the internal disciplinary proceedings did not alter the date of dismissal. Surprisingly, the employee concerned told the tribunal that he had waited to make his claim on the advice of his union, who stated that he should await the outcome of the internal proceedings before going to tribunal. That advice was clearly incorrect, and employees must be conscious that the time limits must be observed scrupulously.
Employees wishing to take their employer to tribunal should, from 6 April 2014, go through ACAS to try and settle the potential claim first.
Confirmation was given by the European Court of Justice ("ECJ") this month [judgment here], that where an employee has a disability, it can ask an employer to consider a reduction in working hours as one of the reasonable adjustments to be made to accommodate that employee. The reduction can be legitimately be rejected as an accommodation however, if it would place a disproportionate burden on the employer.
Right to manifest religious beliefs
The European Court of Human Rights ("ECHR") today gave its judgment on a number of cases from the UK [Eweida & Ors v UK] concerning an employee's right to manifest their religious beliefs. What was clear from the judgments in the 4 cases concerned, was the wide margin of appreciation given to employers in balancing the employee's right against other legitimate considerations, such as different but equally important human rights. In the cross wearing cases, 2 opposite results came about because of that wide margin. In one, the BA worker concerned was found not to have had her right to manifest sufficiently protected and she was awarded damages. There was no powerful enough justification deployed on the employer's behalf. In the other, the nurse's right to manifest was outweighed by the employer's need to protect health and safety. In the other 2 of the 4 cases, the right to manifest was again outweighed, this time by the employer's need to prevent discrimination. It can be concluded that where employers are seeking to prevent discrimination or protecting health and safety, the right to manifest one's religion may well be legitimately overriden by those other considerations.
Redundancy on return from maternity leave
The position of mothers returning from maternity leave has been strengthened by the EAT recently[S G Petch Ltd v S English-Stewart]. An employer made a returning mother redundant on the basis that her work had been adequately covered by other members of her team in her absence, without the need for a substitute and thus there was no longer any need for her. The EAT confirmed that such a redundancy was a dismissal "connected with maternity leave" and so in order to dismiss fairly, the employer needed to show that there was no one else (that would also potentially be redundant) doing a similar job to the returning mother or that if there was, they too had been made redundant. As the tribunal stated, if that was not the case then "there is a real problem for a woman taking maternity leave". A welcome judgment by the EAT for families.
Dismissal on grounds of political opinion or affiliation
The European Court of Human Rights (the"ECtHR") held this month that UK law is deficient in its protection for employees from dismissal on the grounds of political opinion or affiliation [Redfearn v UK]. The court considered the dismissal by a private company of an employee on the grounds of his membership of the BNP. It concluded that sufficient safeguards against such dismissal were missing in the UK and should be given either by requiring no period of qualifying employment, as with the standard discrimination claims, or by enacting a separate strand of discrimination on the grounds of political opinion/affiliation. The ECtHR was clear that the protection against race discrimination did not assist in such a case as this and it will be interesting to see how such claims can now be pursued at tribunal level. Perhap as claims for discrimination on the grounds of philosophical beliefs?
Leaving work to set up own business?
There have been two interesting cases on this point recently, one by the employment appeal tribunal and one by the Court of Appeal, both of which emphasise that an employee has the right to prepare to set up their own business whilst still working for their employer, even if their business will be a competing one. This is subject to the employee ensuring they do not use the employer's confidential information or breach any specific provisions in their employment contract. [Ranson v Customer Systems Ltd]
An employee cannot therefore be fairly dismissed for gross misconduct or for breach of either the implied term of mutual trust and confidence or the implied term of fidelity on the basis that they are preparing to set up their own business. [Khan & Anor v Landsker Child Care Ltd]
Annual leave during sickness - no need to "use it or lose it"
The Court of Appeal has confirmed that where an employee through sickness has been unable to use their annual leave, that employee is entitled to carry their untaken paid annual leave forward to the next leave year without making a prior request to do so.
This is even the case where there is a contractual agreement stating that such leave may not be carried forward or placing conditions on the carrying forward.
Whilst this applies to the 4 weeks' statutory leave guaranteed for each employee under European law, it is not clear whether the extra 1.6 weeks British employees currently enjoy are also protected. Until a case is decided on the right carry over leave additional to a worker's the statutory leave, it is safe to assume that there is no such right - the court having indicated as much by its reference to a recent European case.
Reduction in working hours as reasonable adjustment
Unfair dismissal - some other substantial reason
An employment tribunal has found it was fair for an employer to dismiss a pilot whose airside pass was withdrawn by that employer for security reasons.[Jamaluddin v British Airways PLC & Ors]
The pilot had been found to have associations with 2 men who were investigated by police and arrested under the Terrorism Act. Neither were ultimately convicted of any terrorism or other offences.
The withdrawal of the employee's airside pass effectively ended his career as a pilot in the UK, without compensation; however the tribunal held that the withdrawal was fair and the employer acted reasonably.
I await a possible appeal with interest.
Right to payment whilst under suspension
A case in which I appeared for the claimant in the Employment Appeal Tribunal last year, fell to be considered in the EAT recently. The EAT held in Burns v Santander, that there was no right to payment of wages where an employee had made himself unavailable for work through criminal conduct outside of work, where that conduct led to his incarceration.
In March 2012 the EAT reaffirmed however, that without a specific contractual right to withhold pay during suspension, wages would have to be paid to any employee who was ready and willing to work, even where there was an outstanding allegation of criminal conduct against the employee [Kent County Council v Knowles].
It is important to ensure that your employer respects the terms of your contract during any disciplinary proceedings and I am experienced in advising from the earliest stage all the way to the EAT.
Sickness during annual leave
A European Court ruling reinforces employees' right to take further annual leave later where an employee falls sick just before or during a period of scheduled annual leave [ANGED v FASGA & ors].
The Employment appeal tribunal has confirmed that there is no TUPE transfer where not only the contractor but also the client has changed [Taurus Groups Ltd v Crofts & anor]