What did we get up to last month?
There’s been a fair amount of employment related news over the past month. The biggest news has been in relation to the judicial review brought by UNISON as a challenge to the introduction of employment tribunal fees. The High Court has dismissed UNISON’s application, meaning that for the time being at least the fee system can remain in place. The High Court reasoned that UNISON had failed to provide any evidence of specific cases in which the potential claimant had been prevented from bringing their claim due to being unable to afford to pay the fee. On that basis, the Court was unable to uphold the application, although the judges did appear to accept that there must in fact be cases where the fees payable have unfairly prevented the claims from being brought. Permission to appeal was granted, and UNISON has confirmed that it will be appealing the decision.
On the subject of fees, the latest Tribunal statistics have been released which show a reduction of 62% in the number of claims issued between July and September 2014 when compared to the number of claims brought during the same period in 2013. Are the fees blocking access to justice, or are they succeeding in protecting employers from vexatious claims? We’d be interested to hear your views.
We covered the holiday pay cases in November’s bulletin which, by way of summary, concluded that compulsory non-guaranteed overtime normally worked by employees must be included in holiday pay. In response to the judgment the government put together a task force in order to figure out how to limit the potential impact on employers. Its plan has now been announced, which is to put in place a limit of 2 years on the back pay which may be claimed. This will be in force for claims issued on or after 1 July 2015. It would appear that this limit will apply to all unlawful deduction claims, not simply those brought to recoup holiday pay. We do not know if this was the task force’s intention, and it may be that further changes will be made to the regulations if indeed it wasn't.
We saw a link to this PDF on Twitter which shows a comparison of maternity and paternity rights in the EU. We were quite surprised at the variation both in terms of the duration of maximum leave entitlements and the payment for that leave. It's an interesting read if you have a few minutes to spare.
Lastly, we were pleased to discover that the total amount that we raised in 2014 for Anna’s Hope, our charity of the year, was £5,000. We’re looking forward to getting involved in more fundraising activities in 2015 in aid of East Anglian Children’s Hospices.
Any new cases to be aware of?
The European Court of Justice has ruled that whilst there is no general principal of law which makes discrimination on the grounds of someone’s obesity unlawful, that obesity may fall within the definition of disability if it gives rise to long-term physical, mental or psychological impairments which hinder a worker’s full and effective participation in their professional life on an equal basis with other workers. The Employment Appeals Tribunal has previously reached a similar conclusion in the past so the ECJ judgment will not have a significant impact on the way in which our employment tribunals determine these sorts of cases.
In Brito-Babapulle v Ealing Hospital NHS Trust, the Court of Appeal (CA) has held that where an employer had dismissed an employee for misconduct and stated that her conduct amounted to fraud, it was not a requirement that the employer had to have a genuine belief (and reasonable grounds for that belief) that the employee’s conduct did in fact amount to fraud. The employer had made it clear that the reason for dismissal was the employee’s conduct, and that was enough.
The EAT, before the CA hearing, had held that the Tribunal had incorrectly concluded that a finding of gross misconduct will always mean that dismissal will fall within the range of reasonable responses. The EAT took the view that an employer must always consider whether or not dismissal was the correct response, or whether there were any mitigating factors which would push a dismissal outside the band of reasonableness. The Tribunal will need to reassess its decision in light of the EAT judgment (which did not form part of the appeal in CA).
In London Borough of Hillingdon v Gormanly, the EAT held that the tribunal had incorrectly concluded that three managerial employees had transferred to a new employer by way of a service provision change under TUPE. The tribunal had focussed solely on the fact that the service provider (the claimants’ original employer) had only had one client and concluded that in light of this, the managers must have transferred when the contract moved to another service provider. The EAT has concluded that the tribunal should have considered the organisational structure of the original service provider (and especially how the work was organised when it had had more than one client), and what the managers were required to do under their contracts of employment. It made clear where a service provider has just one client, it doesn't necessarily follow that all employees will be covered by TUPE where those services are taken over by another provider.
The question of whether or not TUPE applies remains tricky, and advice ought to be taken where a possible TUPE transfer is identified
