Employment Law Roundup

Employment Law Roundup

Cap on redundancy pay under the new Enterprise Act

Public sector accounts for 2013/2014 show that £1.8 billion had been paid out in exit payments. A number of “golden parachutes” were in excess of £100,000. To address the implications of dipping into the dwindling public purse, the Enterprise Act seeks to limit “taxpayer funded six figure exit payments in the public sector”. The new Act caps the total amount of exit payments to public sector workers in any period of 28 consecutive days at £95,000.

Useful guidance for conducting a disciplinary investigation

The HR department should advise on matters of policy and procedure, anything beyond this is likely to prejudice the disciplinary investigation. In a recent EAT case an inexperienced investigation officer required assistance from the HR Department. The EAT found that the HR Department appeared to have sought to influence the investigating officer’s view of the Claimant’s alleged misconduct. This case highlights the time balance between a fair problem and personal bias of the disciplinary officers, which of course is very fact sensitive.

No TUPE transfer if an employee is permanently off sick

The EAT recently held that an employee who is on long-term sick leave “will generally require some level of participation or, in the case of temporary absence, an expectation of future participation in carrying out the relevant activities on behalf of the client”, in order for the employee to TUPE transfer. It is not enough to “be on the outgoing employer’s books”, if the employee does not contribute to the economic activity of the incoming employer.   

Can only an individual be protected from discrimination?

The EAT upheld the ET’s decision that a corporate body which is a member of a Limited Liability Partnership (LLP) can bring a direct discrimination claim for detrimental treatment because of a protected characteristic of an individual, who was both a principal shareholder and a member of the LLP. Mr Justice Langstaff confirmed that it is not only an individual who can be protected from discrimination under the Equality Act 2010, on the basis that it is only an individual that can have a protected characteristic. A corporation can be a discriminator (set out in the Act as a ‘person’), so it can also be a ‘person’ for the purpose of mistreatment. It was further concluded that there would be no rationality behind restricting the given meaning of ‘person’ in s.13(1) to an individual.  

Grandparents to receive shared parental leave   

George Osborne announced on 5^th October 2015 that the government plans to allow grandparents to take shared parental leave. The objectives of the proposal are to enable parents to return to work quicker and to encourage grandparents to remain in employment, rather than quit their jobs to help with childcare. It is expected for the government to consult on the proposal during the first half of next year, with the view to implement the proposal by 2018.    

New whistleblowing rules in the financial sector

The Financial Conduct Authority and the Prudential Regulation Authority have recently published new rules which aim to provide better protection for whistle-blowers and to make it easier for employees to raise their concerns at the workplace. Banks and insurance companies are obliged to implement the new rules by 2016. The new rules include a requirement to appoint a senior manager as a  ‘whistle-blowers’ champion’, to be responsible for providing support to internal whistleblowers, putting in place robust whistleblowing arrangements, training of staff and providing an annual report on whistleblowing to the company’s boards. In addition, the Financial Conduct Authority must be notified if a bank or an insurance company loses a whistleblowing employment tribunal claim.

Entitlement to National Minimum Wage and night workers

Mr Shannon worked as an “on-call night care assistant”. He was able to sleep during the night shifts and in fact he was rarely asked for assistance. Mr Shannon argued that he was entitled to National Minimum Wage for the hours during which he was “on-call”. The Employment Appeal Tribunal rejected this and held that he was only entitled to payment for the hours during which he had actually worked. This decision demonstrates that a mere presence of a worker at the workplace does not automatically entitle him to payment for the whole shift and that the court would look at all circumstances when making a decision.

How to calculate wage deductions for striking teachers?

The Court of Appeal has confirmed that wage reductions for striking teachers should be calculated according to working days, rather than according to calendar days. Therefore, if a teacher is on strike for a day, the reduction should be calculated as 1/260 of their pay, which is the number of working days in a year.  

Meaning of “public interest” – whistleblowing claims

Recent case law indicates that disclosures concerning contractual matters between an employee and an employer may be “in the public interest” and thus protected by the whistleblowing provisions. The Claimant and three other lorry drivers made a written complaint that overtime hours were not distributed fairly, hence the employer was in breach of their employment contracts. The Employment Appeal Tribunal confirmed that if a section of the public is concerned with the disclosure, it is made “in the public interest”.

Interesting publications to read

• The House of Commons Library has published a briefing paper on the background and operation of the Employment Tribunal Fees, which can be accessed here.
• The Law Society has published a discussion document, Making Employment Tribunals Work For All, which outlines its proposals to improve the employment tribunal structure for employees, employers, and the administration of justice.
• BIS has published guidance on zero hours contracts, which includes an explanation of the meaning of zero hours contracts, provides guidance on their appropriate use, best practice and exclusivity clauses. It should be noted that anyone who is employed on a zero hours contract is entitled to statutory employment rights. In addition to this, the use of exclusivity clauses in these type of contracts is prohibited, to ensure that employees are not restricted from looking for work or accepting work from another employer.