"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.   Read our briefing here
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.   Read our briefing
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.   Read our briefing
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.  Read our briefing
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.  Read our briefing
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.  Read more about Lock
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.  Read our briefing
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.  Read our briefing
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.  Read our briefing
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.  Read our briefing

Key
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).

Hat tip Eversheds

LGA legal advice on Pensions for Councillors

The Local Government Association has publised guidence obtained from Eversheds solicitors on "Powers of Councils to Pay Pensions to Elected Members".

The summary of this advice (copied below) is in its latest newsletter which can be found here.  

The actual advice can be found on on this legal opinions page.

I have contacted the Newham Monitoring office (again) as a Councillor expressing my concerns about the Executive decision to go ahead with Pensions for Councillors in light of this advice.

I have been refused access to internal legal advice given to Newham Cabinet members. 

"This advice has been obtained to clarify whether a council in England can make contributions to alternative pension provision for its elected members following the changes brought about by the LGPS (Transitional Provisions, Savings and Amendment) Regulations 2014, which ended the power for councils in England to offer their elected members membership of the LGPS.

It is Eversheds’ view that, whilst councils have a general power of competence under s1 of the Localism Act 2011, such a power does not permit a council to do anything which it has been specifically prohibited from doing. The changes brought about by the Transitional Regulations 2014, which were explicit in ending the option for councils in England to provide pension provision to elected members, would mean the general power of competence could not be used to make contributions to alternative pensions provision.

The advice from Eversheds also considers that auto-enrolment would not apply to councillors as they are office holders and would not meet the definition of workers under the Pensions Act 2008. The advice notes particular provisions relating to the Greater London Authority and Mayoral Development Corporations which interested parties are advised to be aware of"

Directors face Porridge over 'elf 'n' Safety

On route this morning to represent a member in Hertfordshire I had to pull over to sort out a flat tyre just when a really interesting topic was starting on the BBC Radio 4 “Today” programme. I’m sure everyone has sometime or other experienced similar frustrating moments!

On 16 January the “Health & Safety (Offences) Act 2008 came into force. Thanks to modern technology I was able to listen again to this report just now on the BBC iplayer.

Tim Hill, from Eversheds Solicitors, was being interviewed. This superb law was due to a private members bill sponsored by London Labour MP (and UNISON member) Keith Hill. Even before this I thought that Keith was an impressive figure. He gave a tour de force presentation at a London UNISON Labour Link meeting last year. Thanks I think to Keith the bill was supported by the Government.

Many fines for breaches of health and safety law have been increased significantly but for the first time, imprisonment is now an option for the Courts for a wide range of offences.

Tim (no relation I assume to Keith) thought that this will have a greater effect than the much better publicised Corporate Manslaughter Act, since far, far more managers will be potentially affected.

Managers and directors must “enable that things are done safely”. The board will have to take health & safety as seriously as they do finance and production. If they turn a blind eye or are reckless and break the law then Eversheds will inform their clients that for the first time that they face Porridge, not a fine that the company could pay and write off against tax.

It’s a lovely irony I suppose that potentially one of the most far reaching laws to benefit workers and meet trade union demands should had been nurtured and brought to life by Tony Blair’s former PPS.