Emplaw monthly - April 2015

Articles in April by emplaw online

Election promises of 8 parties. We summarise their manifestos on employment law

Small Business, Enterprise and Employment Act 2015. Zero hours, whistleblowing and more - what to prepare for

April legislative changes. Summary in last month's newsletter
 

Employment Law News

30th April 2015 - the ECJ has given its judgement on the meaning of  'establishment'.

The Court in USDAW v WW Realisation 1 Ltd (in liquidation) and anor (Case C-80/14) has  held 'Article 1(1)(a)(ii) of Directive 98/59 must be interpreted as not precluding national legislation that lays down an obligation to inform and consult workers in the event of the dismissal, within a period of 90 days, of at least 20 workers from a particular establishment of an undertaking, and not where the aggregate number of dismissals across all of the establishments or across some of the establishments of an undertaking over the same period reaches or exceeds the threshold of 20 workers'. See also Definitions/establishment

Adoption leave and pay: technical guidance

BIS has published technical guidance for employers on adoption leave and pay to assist in understanding the changes that came into force on 5 April 2015. To recap, adopters are now entitled to similar rights to  birth parents and adoption is now a ‘day 1’ right although there is a 26 week qualifying service for adoption pay. New groups of parents now qualify for adoption leave and pay. These include dual approved prospective adopters who have a child placed with them under section 22C of the Children act 1989 with a view to adoption. It also includes the intended parents in a surrogacy arrangement (‘Parental Order’ parents). New groups of parents also qualify for paternity leave and pay: the partner of the dual approved adopter; and one of the parental Order parents.

Further, eligible employees and agency workers with 12 weeks’ service are now entitled to take time off work to attend up to 5 adoption meetings. Parental Order parents are now entitled to take time off to attend antenatal appointments.

Finally, adopters and their partners and Parental Order parents may be eligible for shared parental leave and pay.

Pay and Work Rights Helpline

Advice and guidance services currently provided by the Pay and Work rights Helpline has transferred to Acas. The Acas helpline, in addition to its usual services, now answers queries on the National Minimum Wage; working for an employment agency; working hours, rest breaks and holidays; agricultural workers’ rights; and working for a gangmaster.

UNISON appeal proceeds

UNISON has been granted leave to appeal against the decision of the High Court to dismiss its judicial review challenge to the introduction of employment tribunal fees.

Online tool to increase pay transparency

The Department for Business, Innovation and Skills has announced plans to launch an online tool to make it easier to find out how much people are paid in different occupations, sectors and regions across the UK. The aim is that increased transparency will see the wages of people on low pay increase.

Case Summaries

CASES: 

Chesterton Global Ltd and anor v Nurmohamed UKEAT/0335/14

Whistleblowing complaint in the interests of mamagers was ‘in the public interest’

The EAT has given useful appellate guidance on the meaning of the words ‘in the public interest’. These words were introduced by the Enterprise and Regulatory Reform Act 2013 into the whistleblowing provisions of the Employment Rights Act 1996 to exclude from its ambit claims based on the breach of an employee’s contract of employment.

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Southern v Brittania Hotels Ltd and another ET/1800507/14

Zero hours worker receives large pay-out for injury to feelings

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Anderson v Chesterton High School UKEAT/0206/14

School mentor’s appointment as mayor was ‘SOSR’

One of the potentially fair grounds for dismissal is ‘some other substantial reason of a kind as to justify the dismissal’ (SOSR). In Anderson v Chesterfield High School UKEAT/0206/14 the EAT held that a politician who had been employed by Sefton Borough Council at Chesterfield High School but had ceased carrying out his duties there since he was elected as Leader of Liverpool City Council, had been fairly dismissed for SOSR when he was then elected Mayor.

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Smith v Carillon (JM) Ltd and another [2015] EWCA Civ 209

No implied contract between blacklisted agency worker and end user

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Legge and others v Prestige Homecare Ltd (in administration) and others ET/2401324/14

Costs award made to claimants whose fees were paid by union

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Hayward v Zurich Insurance Company Plc [2015] EWCA Civ 327

Settlement Agreement could not be re-opened on later discovery of misrepresentations

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EF and another v AB (Debarred) and others [2015] IRLR 619

Circumstances when an extended restricted reporting order is appropriate

The EAT in EF and another v AB (Debarred) and others have granted an extended restricted reporting order (RRO) under Rule 50 of the 2013 ET Rules in a case where AB made allegations of sexual abuse against EF and his wife, explicit photographs of EF’s wife were circulated by AB and there were threats to escalate matters ‘to the next level via all different media available’.

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Deangate Ltd v Hatley and others UKEAT/0389/14

Applications for fee remission after submission of claims were in time

Mr Hatley and others completed forms of application for fee remission some days after submitting their claims on line.  Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 provides: “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.” In practice form EX160 (which is not prescribed by legislation) is used for applications for fee remission

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Way v Spectrum Property Care Ltd [2015] EWCA Civ 381

Warning given in bad faith could not be relied upon

The Court of Appeal in Way v Spectrum Property Care Ltd had to determine whether a warning given in bad faith could be relied upon for the purpose of determining whether there is sufficient reason to dismiss an employee.

In 2010 Mr Way was given a final written warning in relation to the inappropriate appointment of an individual by him in his capacity as recruitment manager.

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Chadburn v Doncaster and Bassetlaw Hospital NHS Foundation Trust and another UKEAT/0259/14

Costs award against claimant who was unable to pay

In Chadburn v Doncaster and Bassetlaw Hospital the EAT upheld a tribunal’s costs award of £10,000 against a claimant even though she was unable at that time to pay the award.

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