Wednesday, January 06, 2016

"The 12 employment law cases of 2015"

"Before 2015 is consigned to history and 2016 presents a new set of employment law challenges, it is timely to reflect on the year’s significant cases. We have identified 12 cases which developed the law and potentially changed HR policies and practices:

Working time and travel

FSP del COO v Tyco Integrated Security/Fire & Security: The CJEU ruled that for certain workers who do not have a fixed or habitual place of work, travel between home and the first and last assignments of the day counts as working time. The ruling does not mean workers must be paid for travel time but shift arrangements may need to be changed to comply.

Redundancy consultation

USDAW v Ethel Austin Ltd and others: The CJEU confirmed that the trigger for collective redundancy consultation should be the dismissal of at least 20 employees from an establishment within a period of 90 days, not 20 employees across the whole employer. The CJEU reiterated that an “establishment” is the entity to which the workers are assigned to carry out their duties and this will depend on the factual circumstances.

HR’s role in disciplinary proceedings

Ramphal v Department for Transport: In this unfair dismissal case, the EAT ruled that in disciplinary proceedings an Investigating Officer is entitled to call for advice from HR; but HR should confine their advice to questions of law and procedure and avoid straying into areas of culpability or, except when addressing issues of consistency, what is the appropriate sanction. The decision has been appealed.

Whistleblowing and the public interest

Chesterton Global Ltd v Nurmohammed: Despite changes made to the law in 2013, which added a “public interest” element, the EAT ruled that a worker’s complaint about a breach of his own contract of employment may still satisfy that requirement and qualify as a protected disclosure where the alleged breach also affects other workers. The Court of Appeal is due to hear an appeal against this decision in 2016.

Associative indirect discrimination

CHEZ Razpredelenie Bulgaria: The CJEU ruled that the concept of so-called “associative” discrimination applies to indirect discrimination claims. This suggests that once it is established that those with a protected characteristic are particularly disadvantaged by a provision criterion or practice applied by an employer, anyone who suffers that same disadvantage can bring a claim of indirect discrimination even if they don’t share the same protected characteristic as the disadvantaged group.

Indirect discrimination

Home Office v Essop: This judgment could make it harder for some claimants to make out claims of indirect discrimination after the Court of Appeal stressed the need to consider the nature of and reason for the claimed disadvantage. This is because there will only be indirect discrimination if the disadvantage suffered by the claimant is the same as that experienced by other members of the disadvantaged group. The decision is being appealed to the Supreme Court.

Employment Tribunal fees

Unison v The Lord Chancellor: Unison's attempts to have the Employment Tribunal fees regime quashed suffered another setback, with the Court of Appeal rejecting the union’s claim that the fees regime is unlawful. Unison is now looking to take their case to the Supreme Court.

Holiday pay

Lock v British Gas: A Tribunal ruled that EU law can be read across into the Employment Rights Act 1996 so as to require employers to take into account commission payments when calculating pay for the basic four week holiday entitlement under the Working Time Regulations 1998. The EAT heard an appeal in December and its decision is awaited.

Carrying forward annual leave

Plumb v Duncan Print Group Ltd: The EAT clarified that although workers on sick leave can carry forward up to four weeks’ untaken leave into a new holiday year (even if they are capable of taking annual leave during their sickness absence), such untaken leave will be lost if not taken within 18 months of the end of the leave year in which it arose.

Pay during strikes

Hartley v King Edward VI College: This case concerned how much pay can be withheld for a day's strike by salaried employees. The Court of Appeal accepted that the employer in this case was entitled to withhold 1/260 of the strikers’ annual salary, because they worked a regular five day week (5 days x 52 weeks = 260 working days). The case makes it easier for other employers to base deductions for strike time on the total working days per year, rather than calendar days, although in each case the contract of employment must be considered.

TUPE: employees on long-term sick leave

BT Managed Services v Edwards: Against a backdrop of prolonged sickness absence and exhaustion of phi cover, an employee was kept “on the books” for commercial reasons but with no expectation he would return. The EAT concluded the employee was no longer “assigned” to a relevant grouping for TUPE purposes. The case has now been appealed.

Data protection and US safe harbor

Schrems v Data Protection Commissioner: The CJEU ruled that the US Safe Harbor scheme does not provide adequate protection of personal data of EU citizens and is therefore not lawful. In the immediate aftermath, EU employers must either refrain from sending such data to US until an alternative solution is identified by the EU or do so with caution, where possible applying appropriate model clauses and internal or intra-group protections.
EAT Employment Appeal Tribunal
CJEU Court of Justice of the European Union

Employment law is very important but it is only at best a safety net (and has been watered down in recent years by this Government). The best protection at work is of course from joining a trade union (JG).

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