What did we get up to last month?
The Employment Appeals Tribunal hearing of the appeals in what are being termed the "holiday pay cases" started on 28 July 2014. The EAT will be deciding whether or not the pay that a worker has received when carrying out non-guaranteed overtime should be taken into account when the employer is calculating the amount of pay that the worker must be paid when taking holiday. A number of lawyers have attended the EAT hearing as observers and have been live-tweeting the submissions being made by each party – there are sound arguments on both sides. Clearly, if the EAT confirms that non-guaranteed overtime must form part of the holiday pay calculation, the financial impact on employers whose staff frequently work overtime will be huge – the importance of the EAT's decision therefore cannot be overstated. We will keep you posted as to the outcome in a future bulletin, although you can always follow us on Twitter for this and other news.
Concern about the impact on Tribunal fees on workers' access to justice appears to be spreading, with some calling on the Government to re-examine the fee scheme. Equally, there are others who applaud the scheme for having quickly achieved the Government's key objectives. It seems as though the debate will rumble on for the foreseeable future.
We read a fascinating article about Asperger's syndrome in the workplace and in particular the under-employment of and difficulties faced by employees who have been diagnosed with Asperger's. If you're looking for a coffee break read, turn to page 55 of the Cambridge Business magazine.
Any new cases to be aware of?
There are quite a few this month:
In April's briefing, we reported on the case of Prophet v Huggett in which the High Court granted an injunction to enforce a restrictive covenant which had been incorrectly drafted. The decision has now been overturned by the Court of Appeal who had far less sympathy for the employer. The CA held that the wording of the covenant rendered it useless, and the employer simply had to put up with the consequences of drafting a meaningless covenant. Careful drafting is absolutely essential for restrictive covenants – we would always recommend taking legal advice in this notoriously tricky area.
In McMillan v Airedale NHS Foundation Trust, the Court of Appeal has upheld the High Court's decision that an employer is not permitted to increase the severity of a disciplinary sanction on appeal unless it has expressly reserved the right to do so in the employee's contract of employment. The EAT commented that in principal there is nothing wrong with increasing the severity of sanctions on appeal. However, this would appear to be at odds with the ACAS Code of Practice and we are of the view that there would be very few cases in which it would be reasonable to increase the sanction on appeal. Our advice would be that if you did want to allow for an increased sanction on appeal in exceptional circumstances, it would be best practice to also allow a further right of appeal against that increased sanction.
The EAT held in Hershaw v Sheffield City Council that an employer may be bound by incorrect rates of pay which had been included in a grievance outcome letter prepared by a HR officer. Although the HR officer did not in fact have the authority to decide upon pay rates, the relevant question was whether or not it was intended that the letter would reflect the pay rates that had in fact been decided by the Council, and whether or not the HR officer was held out by the Council as having been authorised to make this communication on its behalf.
In Dominique v Toll Global Forwarding Ltd the EAT found that the employer had failed in its duty to make reasonable adjustments to redundancy selection criteria which put the claimant at a substantial disadvantage, even though the claimant would still have been dismissed by reason of redundancy. The EAT agreed with the claimant's argument that the duty to make adjustments is not limited to avoiding dismissal, it is equally as applicable to lesser detriments such as hurt feelings which may result from an unfairly low score.
In Truslove v Scottish Ambulance Service, the Scottish EAT held that periods during which ambulance paramedics were contractually obliged to be within a three-mile radius of their place of work and respond to calls within three minutes were NOT rest periods for the purposes of the Working Time Regulations 1998, but working time. Although the paramedics were not required to be at their place of work or perform any duties unless called upon to do so, there were constraints placed upon their freedom to choose where they spent those periods given the distance and response time requirements. On that basis they could not be considered as genuine rest breaks.
