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
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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.
Holiday Rights – the latest!
• 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 – carry over
• 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
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 update
Racial 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
Discipline and Dismissal Cases
• 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
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 update
Working 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 update
Working 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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