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A B C D E F G H I J K L M N O P R S T V W Y

Employment Bulletin

A regular bulletin that provides updates affecting employment issues and the related legislation and best practice.

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Can an employer rely on a previous warning alleged to have been given in bad faith?

Monday 28th September 2015

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Employment Bulletin - Issue 292

In Way v Spectrum Property Care Ltd [2015], the Court of Appeal considered whether a warning which is shown to have been given in bad faith can be relied upon for the purpose of justifying a dismissal.

The facts

Mr Way had been a recruitment manager, but was dismissed for misconduct on 14 December 2013.

In 2010 Mr Way had been given a final 12 month written warning for breaching company recruitment policy and informed of his right to appeal. Mr Way argued that the warning had been given to cover up his manager’s own role in the recruitment process and was told not to appeal.

In 2011, Mr Way was charged with misconduct for sending inappropriate emails in breach of the company’s rules and was dismissed because he was already subject to a final written warning. Mr Way brought a claim for unfair dismissal, arguing that the warning had not been given in good faith.

The employment tribunal hearing the claim decided that because there was a final written warning, albeit for a different category of offence, informing Mr Way that any further misconduct in the following 12 month period could lead to dismissal, entitled the company to dismiss him. Mr Way appealed to the Employment Appeal Tribunal (EAT).

The EAT dismissed Mr Way’s appeal on the basis that hearing evidence about the warning would have made no difference to the finding that the dismissal was fair because the company was entitled to rely on the warning even if it had been given in bad faith. The EAT concluded that there had been no internal appeal against the warning, and an appeal against the dismissal had rejected the allegation that the warning had been given in bad faith. Mr Way appealed to the Court of Appeal.

The Court of Appeal concluded “…a warning given in bad faith is not, in circumstances such as these, to be taken into account in deciding whether there is, or was, sufficient reason for dismissing an employee. An employer would not be acting reasonably in taking into account such a warning when deciding whether the employee’s conduct was sufficient reason for dismissing him; and it would not be in accordance with equity or the substantial merits of the case to do so….”

The Court of Appeal has remitted the claim to a differently constituted employment tribunal to determine whether the dismissal was fair, taking into account whether the warning was given in bad faith.

Practical tips

It is legitimate for an employer to rely on a final warning when deciding to dismiss for a further offence provided that:

  • the earlier warning was issued in good faith;
  • there were at least grounds for imposing the warning; and
  • it must not have been manifestly inappropriate to issue the warning.

Procedures should ensure that the seriousness of a final written warning is recognised and only given as a sanction following a proper process and thorough investigation. Such precautions should ensure that it is safe to rely on a previous final written warning.

If you would like more information about warnings or to discuss any employment law issue you may have please contact:

Elspeth Beatty
Solicitor – Employment & Pensions
Tel: 0151 600 3114
Email: elspeth.beatty@brabners.com

 


Travelling time for workers with no fixed workplace counts as ‘working time’

Thursday 10th September 2015

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Employment Bulletin – Stop Press – Issue 291
 

In Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SA, it was held by the Court of Justice of the European Union (CJEU) that, travelling time for workers with no fixed workplace counts as ‘working time’.

The facts

Tyco Integrated Security (the Company) assigns its workers to particular geographical areas, and provides its workers with use of a company vehicle in which they travel every day from their homes to the places where they are to carry out installation and maintenance work. They use the same vehicle to return home at the end of the day.

The Company’s policy is that the first and last journeys of the day, that is, the journey from the worker’s home to the first customer, and the journey from the last customer to the worker’s home, is not counted as ‘working time’. The Company calculated the working time as running from the worker’s arrival at the first customer of the day to the time that the worker leaves the premises of the last customer. The workers sought to challenge this classification as being contrary to the EU Working Time Directive (No. 2003/88/EC).

A Spanish court referred the case to the CJEU, for a preliminary ruling on the interpretation of certain aspects of the organisation of working time.

The Advocate General gave 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 Directive. It was noted that the Directive did not provide for an intermediate category between ‘working time’ and ‘rest’, so that travelling time must be either one or the other. In the Advocate General’s view, travelling was an integral part of the work and necessary to service customers, and therefore should be regarded as forming part of the workers’ activities.

The CJEU has now given its judgment, confirming the opinion of the Advocate General. The CJEU noted that any period during which a worker is at work, at the employer’s disposal and carrying out his or her activity or duties, is ‘working time’.

Practical tips

Employers remain free to determine the remuneration for travelling time. Care should be taken when setting the remuneration for travelling time, to ensure that a worker’s average hourly pay over a pay reference period, does not fall below the national minimum wage.

If you would like more information about the decision and the implications please contact:

Elspeth Beatty
Solicitor – Employment & Pensions
Tel: 0151 600 3114
Email: elspeth.beatty@brabners.com

 


Tax treatment of termination payments could be about to change

Friday 31st July 2015

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Employment Bulletin - Stop Press - Issue 290

The government has announced a consultation on simplifying the tax and national insurance treatment of termination payments and the current position that the first £30,000 of any non-contractual termination payment is tax free could be about to change.

The consultation document can be viewed here

The following proposals are considered in the consultation:

  • Removing the distinction between contractual and non-contractual termination payments.
     
  • Creating a new exemption to tax and national insurance which increases proportionately with the number of years of service the employee has completed.
     
  • The introduction of a requirement for employees to have completed two years of service in order to qualify for the exemption to tax and national insurance. This would mean that no employee would be able to receive a tax free termination payment unless they had completed two years of service.
     
  • Making injury to feelings awards subject to tax for some or all of the award.

The consultation document provides, by way of example only, an exemption of £6,000 after two years of service with the exemption rising by £1,000 for each additional year of service. If the examples set out in the consultation document are anything to go by then employees could end up receiving a significantly lower tax free sum on the termination of their employment than would currently be the case.

The government’s consultation invites comments by 16 October 2015. We would be grateful for your views on the proposals.

For more information and to let us know your views please contact:


Brendan McAleese

Solicitor, Employment & Pensions
Tel: 0151 600 3067
Email: brendan.mcaleese@brabners.com

 


Carrying over holiday pay when sick

Wednesday 29th July 2015

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Employment Bulletin – Issue 289

 

In the recent case of Plumb v Duncan Print Group Limited the Employment Appeal Tribunal (EAT) considered whether an employee on sick leave needs to show they were prevented from taking up their annual leave entitlement by reason of their illness in order to carry it forward. The Court also deliberated whether the right to carry forward holiday was unlimited or subject to some form of longstop date.

 

Mr Plumb, a printer, took four years’ sick leave following an accident at work. Upon dismissal, he sought payment for 60 days’ total accrued annual leave covering the years 2010, 2011 and 2012. The Employment Tribunal dismissed the claim on the basis that a worker actually had to establish that they were unable to take their holiday because of their medical condition. In this instance, no medical evidence was produced by Mr Plumb and the Court drew inferences from the fact that he was able to continue working in another weekend job.

On appeal the EAT considered two separate issues:

  1. Does an employee on sick leave need to establish that their sickness prevented them from taking their holiday?
  2. Is there any limitation period for which unused annual leave can be carried over?

On the first issue, the EAT held that Article 7 of the Working Time Directive (WTR) does not require an employee on sickness leave to demonstrate that their sickness prevented them from taking their holiday. They could be unable or unwilling to take it and should still be entitled to carry this forward to a later date (as per the Court of Appeal decision in Larner). It should be noted that this case only concerned the 4 weeks’ leave granted by Regulation 13 of the Working Time Regulations 1998 and did not concern additional leave under Regulation 13A.

On the second issue, the EAT concluded that such leave cannot be carried forward indefinitely and should be limited to an 18 month period following the leave year in question. The wording of the WTR made it clear that there was no requirement for carry forward to be unlimited in duration. This offers some certainty for employers looking to calculate their potential exposure with regards to employee claims for accrued holiday pay. The Court applied the above reasoning to limit Mr Plumb’s right to paid annual leave to the 2012 leave year and discounted any accrued holiday from 2010 and 2011 which would have expired.

This decision offers some valuable guidance to employers as to how they should treat holiday pay in situations where an employee has been on sickness absence for a significant period of time. Considering such leave is intended to provide workers with a period of relaxation and leisure away from the workplace, it is perhaps unsurprising that the Court held it should carry over in scenarios where the worker has been unable to take it. Both parties have been granted permission to appeal to the Court of Appeal and it will be interesting to see if any such appeal is lodged but in the meantime the EAT decision will be authoritative on the question of holiday pay during sickness absence. 

If you would like more information about any holiday pay matters or to discuss any employment law issue you may have please contact:


Andrew Cross

Partner, Employment & Pensions
Tel: 0151 600 3062
Email: andrew.cross@brabners.com

 


Advocate General’s opinion: Time spent travelling to and from home is “working time”

Tuesday 14th July 2015

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Employment Bulletin - Issue 288

The Advocate General of the European Court of Justice (ECJ) has given his opinion in the case of Federación de Servicios Privados del sindicato Comisiones Obreras v. Tyco Integrated Security SL and anor Case C 266/14 ECJ. The opinion preceeds the full ECJ hearing and the ECJ are not bound by the opinion although often follow it.

The case, referred from the Spanish domestic court, concerns the working time of technicians for a security systems company and whether time spent travelling to and from their home is “working time” for the purposes of the EU Working Time Directive (No. 2003/88) (WTD).

The workers had no habitual place of work and travelled from customer to customer in order to carry out repair and maintenance work. The workers were paid for the time spent travelling between customers but were not paid for the time spent travelling from and back to their home at the beginning and end of each day.

In considering this case, the Advocate General described the workers as ‘peripatetic workers’ i.e. not having a fixed place of work. His opinion was that, due to the nature of this peripatetic work, travelling from and back to their home at the beginning and end of each day was an integral part of carrying out the work on behalf of the employer, and therefore did form an inherent part of the workers’ activities.

The reasoning behind his opinion was that he considered the workers to be “at the disposal of the employer” even when travelling from and back to their home. One reason for this was that he did not consider the worker the be outside of the employer’s management powers when travelling from and to home due to the employer determining which customers the worker should see, as well as the fact that the worker was carrying out these actions for the employer’s benefit.

Employers should bear in mind that if this opinion is followed by the ECJ, peripatetic workers are not only likely to be entitled to more pay but are also likely to benefit from other employment rights during travel time, such as those relating to health and safety. However, even if the ECJ do agree with the Attorney General’s opinion, it is unlikely to relate to peripatetic workers who attend a work place location at the beginning or end of their day before travelling home, as these workers would probably no longer be considered to be at the disposal of their employer during the travel time between their home and the work place location. 

If you would like more information about this or to discuss any employment law matter you may have please contact:

Andrew Cross
Partner, Employment & Pensions
Tel: 0151 600 3062
Email: andrew.cross@brabners.com


Government Announce Review into the Impact of Tribunal Fees

Tuesday 16th June 2015

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Employment Bulletin - Stop Press - Issue 287

Just ahead of the judgment in UNISON’s judicial review appeal the Government has announced a review into the impact of the introduction of fees in the Employment Tribunal and Employment Appeal Tribunal.

The purpose is to determine whether the introduction of fees has been successful in:

  • Transferring a fair proportion of the costs from the taxpayer to the tribunal user;
  • Encouraging parties to use alternative dispute resolution;
  • Maintaining open access to justice.

Following the review the Ministry of Justice will make recommendations as to whether any changes need to be made. The TUC have commented that anything short of an abolition of fees will be unacceptable and will fail to address the central problem which is that many employees with good claims but limited funds have been effectively priced out of the Tribunal.

Since the introduction of the fees, the number of single tribunal claims brought between January and March this year, have reduced by 69 per cent when compared with the same period in 2013.

If you would like any further information or to discuss any other employment law matter you may have please contact:


Stephen Brodie

Partner, Employment & Pensions
Tel: 0151 600 3150
Email: stephen.brodie@brabners.com


Is a Limit on Garment Length in the Workplace Discriminatory?

Friday 12th June 2015

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Employment Bulletin - Issue 286

In the recent case of Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery, the Employment Appeal Tribunal (EAT) had to consider whether the requirement for an employee to wear a shorter garment at work, cited as being for reasons of health and safety, could constitute discrimination.

By way of explanation, Ms Begum had applied for a post as a nursery assistant at Barley Lane Montessori Day Nursery. She wore a Jilbab, the Muslim religious garment, to her interview which flowed from her neck to ankle. She expressed the view that she was obliged to wear this by her religion but was asked whether she could wear a slightly shorter Jilbab that would not be seen as a “trip-hazard”. Ms Begum would not accept this requirement and subsequently brought a claim against the nursery on the grounds of discrimination.

The Employment Tribunal (ET) at first instance concluded that this provision, criterion or practice (PCP) of the nursery was not discriminatory against Muslim women because there was no religious requirement for Muslim women to wear Jilbab’s of that precise length. A slightly shorter garment could be worn, which from the employer’s perspective, would be less of a safety hazard. For this reason, the policy could not be said to indirectly discriminate against Muslim women. This was a factual finding made by the ET and finding no error of law nor suggestion that facts had been misstated, the EAT upheld the decision and dismissed Ms Begum’s appeal.

The decision of the EAT may be seen as unsurprising considering the PCP applied equally to all employees and on this basis no direct discrimination could be claimed. In terms of the indirect discrimination resulting from this policy, this was viewed as an unfortunate consequence of upholding the health and safety standards of the nursery, in relation to both the children cared for and the staff themselves.

Practical Tip

In this instance, health and safety took precedence, however, employers should remain alert to any such policies they operate which may have negative ramifications for certain groupings of employees, whatever the underlying beneficial aims.

If you would like any further information or to discuss any other employment law matter you may have please contact:


Paul Chamberlain

Head of Employment & Pensions - Manchester
Tel: 0161 836 8864
Email: paul.chamberlain@brabners.com 


Business immigration: Changes in Immigration Rules

Friday 22nd May 2015

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Employment Bulletin - Issue 285

Immigration and visa requirements play an important role in an employer’s ability to recruit key personnel and in April 2015, significant changes to the Immigration Rules came into effect which will impact on employers and their employees.

The main changes affecting employers include:

Tier 2

Tier 2 of the Points Based System allows employers to sponsor skilled migrants who are coming to the UK to fill a gap in the UK labour market. The changes made to Tier 2 from 6th April 2015 include:

  • The minimum salary thresholds have been updated by 1.2% in line with changes in average weekly earnings for resident workers.
     
  • The 12 month cooling off period has been removed for Tier 2 visas issued for up to 3 months. This allows employers to sponsor interns for a short assignment and then bring them back to the UK for a permanent job within a year without invoking the cooling off period.

Visitors

Changes were made to the rules relating to Business Visitors on 24th April 2015. The rules have been simplified and streamlined from fifteen routes down to four routes: visitor (standard), visitor for marriage or civil partnership, visitor for permitted paid engagements and transit visitor.

The visitor (standard) route consolidates what were previously the routes of general business, child, sport, entertainer, private medical treatment, visitors under the Approved Destination Status (ADS) Agreement with China, prospective entrepreneurs and visitors undertaking clinical attachments, the Professional and Linguistic Assessment Board test and the Objective Structured Clinical Examination.

The new structure means that those entering the UK under the visitor (standard) route will be able to carry out a range of activities under a single category. For example, the list of business activities that a Visitor (Standard) can undertake in the UK has been extended and now includes:

  • Allowing overseas trainers to deliver training to the UK based employees of a multinational company, where the training is part of a contract to deliver global training to the international corporate group;
     
  • Allowing overseas lawyers to advise a UK client on international transactions and litigation, provided they remain paid and employed overseas.

Conclusion

The removal of the 12 month cooling off period for migrant workers who have been assigned a Certificate of Sponsorship for 12 months or less will help global businesses that need to send employees to the UK for short periods each year.

The simplification of the visitor rules is also to be welcomed and will assist applicants. It will remain important for employers to make sure that visitors travel under the most appropriate route and make clear what they can and cannot do during the duration of their stay.

If you would like more information or to discuss any business immigration matter you may have please contact:

Brendan McAleese
Solicitor, Employment & Pensions
Tel: 0151 600 3067
Email: brendan.mcaleese@brabners.com

 

 

Brabners wins employment law award at Liverpool Legal Awards
We are pleased to announce that we have won the 'Employment Law Award' at the recent Liverpool Law Society's Legal Awards. Brabners was one of three nominated firms to reach the shortlist in the employment law category, alongside Hill Dickinson and Morecrofts.


What is the meaning of “Establishment” in redundancy collective consultation? The end of the line for the Woolworths / Ethel Austin case?

Friday 1st May 2015

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Employment Bulletin – Stop Press - Issue 284

Woolworths and Ethel Austin were companies operating chain stores in the UK high street retail sector. Both companies became insolvent and went into administration, which resulted in the redundancies of thousands of employees. One of the employees made redundant, Mrs Wilson, and USDAW, a trade union with over 430,000 members, brought claims against Woolworths and Ethel Austin, seeking protective awards on the ground that, prior to the adoption of the redundancy programmes, a collective consultation procedure had not been followed.

At first instance, protective awards were made in favour of a number of the employees made redundant. However the Tribunal found that each store was a separate “establishment” for TULRCA purposes. Consequently, 4,500 former employees were refused protective awards on the basis that they had worked at stores with fewer than 20 employees, and each store was to be regarded as a separate establishment so that the thresholds for the collective consultation procedure had not been reached.

USDAW appealed to the EAT in both cases, arguing that the redundant employees working at stores with fewer than 20 employees were entitled to protective awards. The EAT ruled that the words “at one establishment” were to be disregarded for the purposes of any collective redundancy involving 20 or more employees. This raised the alarming prospect for employers that in these circumstances the fact that the employees worked out of different locations was effectively irrelevant in determining whether or not the collective consultation regulations would apply. Failure to comply with the regulations would leave employers facing claims worth up to 90 days gross pay per employee.

On a further appeal to the Court of Appeal sought clarification from the CJEU on the expression ‘at least 20’, and an explanation as to whether the meaning of ‘establishment’ covers the whole of the relevant retail business, to be regarded as a single economic business unit, rather than the unit to which the workers concerned are assigned to carry out their duties, i.e. each individual store.

In respect of the meaning of ‘establishment’ in connection with collective redundancies, the CJEU has clarified that:

Where an undertaking comprises several entitles, the term ‘establishment’ in the directive on collective redundancies must be interpreted as referring to the entity to which the workers made redundant are assigned to carry out their duties.

The case has been referred back to the Court of Appeal to establish whether the stores of Woolworths and Ethel Austin, carrying out their activities from stores situated in different locations throughout the UK, can be classified as separate “establishments”.

Although it has not been conclusively determined that each individual store should be considered a separate establishment, the judgment indicates that this approach is acceptable. Therefore, as has been widely reported, no protective awards are anticipated for those who worked in stores with fewer than 20 employees.

Case reference: Union of Shop, Distributive and Allied Workers (USDAW) and B. Wilson v WW Realisation 1 Limited (in liquidation), Ethel Austin Ltd and Secretary of State for Business, Innovation of Skills C-80/14

If you would like more information or to discuss any consultation matters please do not hesitate to contact:


Elspeth Beatty
Solicitor – Employment & Pensions
Tel: 0151 600 3114
Email: elspeth.beatty@brabners.com


Recruitment Leaders discuss the future of marketing with in the industry

Thursday 30th April 2015

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Employment Bulletin - Issue 283 - Recruitment

With the continuing growth of the recruitment sector making it ever more challenging to stand out from the crowd, a strong marketing strategy has become more important than ever for ambitious agencies.

With that in mind, Recruitment Leaders partners Brabners, Outsauce, NatWest, Saffery Champness and Recruitment International held a panel discussion event, chaired by Recruitment International's David Head on 2nd April, to share marketing expertise and discuss the latest best practice to support growth, increase brand value and generate new leads.

You can read a summary of the discussion here.

The next Recruitment Leaders event in July will look at the results of the General Election and its impact on both the wider economy and the recruitment sector specifically. If you are interesting in attending the Recruitment Leaders forum please contact Reta Madgin.

For expert advice on all recruitment law matters please contact:

Paul Chamberlain
Head of Employment & Pensions - Manchester
Tel: 0161 836 8864
Email: paul.chamberlain@brabners.com  


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