What did we get up to last month?
Our employment conference took place on 24 June 2014 and, as always, was very well supported. We had some great feedback from delegates and would like to thank all those who attended, as well as our guest speakers, Mark Wrigley from Greenstones Accountants and John Storey from Origen Workplace Solutions.
The Small Business, Enterprise and Employment bill has started to make its way through Parliament. The bill proposes the following key changes:
- Financial penalties for employers who fail to pay the compensation awarded against them
- A ban on exclusivity clauses in zero hours contracts
- An increase to the maximum financial penalty for breach of the National Minimum Wage regulations from £20,000 per employer to £20,000 per underpaid worker
- A limit to the number of times a party can request a postponement to a Tribunal hearing
- A provision requiring repayment of exit payments made to public sector workers in the event that the worker returns to the public sector within a particular period
The Tribunal statistics for the period January to March 2014 were released by the Ministry of Justice and these show a continuing nosedive in the number of claims being issued: 59% fewer ET1s were presented by claimants during that period than in January to March 2013. The introduction of fees last July has clearly had a huge impact on potential claimants and the concerns about restricting workers’ access to justice remain.
Any new cases to be aware of?
In Bollacke v K + K Klass & Kock, the European Court of Justice has confirmed that the death of a worker does not remove the obligation on the employer to make a payment in lieu of accrued but untaken statutory holiday, as it would be obliged to do upon termination of employment in any other way.
It is well-established that an employee is protected by the Equality Act 2010 if he or she suffers discrimination by virtue of being associated with someone who has a particular protected characteristic. However, the Court of Appeal in Hainsworth v Ministry of Defence, has confirmed that this protection does not extend to an employer’s duty to make reasonable adjustments; this duty will arise only where the employee in question has a disability, and not simply where the employee is associated with someone who has a disability.
In this case, Mrs Hainsworth was employed in a teaching role based in Germany. Her daughter, who has Down’s syndrome, could not be schooled where Mrs Hainsworth worked as there were insufficient facilities to support her significant educational needs. Mrs Hainsworth applied for a transfer back to the UK in order that her daughter could receive the appropriate schooling, but the request was rejected. Mrs Hainsworth subsequently brought a claim under the Equality Act 2010 stating that the Ministry of Defence should have made the reasonable adjustment of accepting her transfer request since this request had been made on account of her daughter’s disability.
The Employment Tribunal, Employment Appeals Tribunal and Court of Appeal all agreed that Mrs Hainsworth’s claim could not succeed. The Court stated that it was clear from the wording used in the legislation that the obligation to make reasonable adjustments only arises in respect of employees, prospective employees and trainees who themselves have a disability.
In Chindove v William Morrisons Supermarket plc, the EAT held that an employee who resigned some 6 weeks after his employer had committed a fundamental breach of contract had not delayed his resignation for too long so as to defeat his claim for constructive unfair dismissal. Mr Chindove had been on sick leave during this 6 week period and in the EAT’s view this was deemed to be too short a period of time from which to infer from Mr Chindove’s conduct that he had decided to waive Morrisons’ breach and affirm the contract. Had Mr Chindove been at work during that period, the outcome would not have been the same.
