Emplaw monthly - May 2015

Articles in May from emplaw online

As the dust settles on the election, we take a look at the employment law provisions contained in the Deregulation Act 2015 which obtained Royal Assent just before the 2010-2015 Parliament was prorogued

The Queen’s Speech on 27 May 2015 covered a wide range of plans which will affect employment law - this article explains more, from the Trades Union Bill to the Extremism Bill and the many bills in-between.

Employment Law News

Conservative party employment law proposals

The Conservative party, having won the General Election, intends to proceed with Bills including the following: Extremism Bill, Immigration Bill, Enterprise Bill, Investigatory Powers Bill, Trades Union Bill, Full Employment and Welfare Benefits Bill. For more detail click here to see our article above on the Queens Speech .

SBEEA 2015 – commencement orders

In the meantime, the first commencement order made under the Small Business, Enterprise and Employment Act 2015 has been published. From 26th May 2015, this brought into effect the following:

  • Section 153 which inserts a new section 27A into the Employment Rights Act 1996 to prohibit clauses that prevent exclusivity in zero hours contracts and a new section 27B which gives the Secretary of State power to make further provision dealing with the anti-avoidance aspects.
  • Section 152 which inserts section 19A into the National Minimum Wage Act 1998, to provide that the financial penalty in a notice of underpayment will be set at 100% of the arrears owed to each worker to who the notice relates, subject to a maximum of £20,000 per worker. Previously the £20000 limit applied to each notice of underpayment.
  • Section 149 which inserts section 49B in the ERA 1996 to provide the Secretary of State with a power through regulations to prohibit defined NHS employers from discriminating against a job applicant because it appears to the NHS employer that the applicant has made a protected disclosure.

Lock case to be back in the courts

British Gas has lodged an appeal in the Lock holiday pay case, which is expected to be heard towards the end of the year. British Gas is arguing that the decision in Bear Scotland v Fulton (that non guaranteed overtime should be taken into account when calculating holiday pay) should not apply to the decision in Lock since commission (as in the Lock case) and non-guaranteed overtime are dealt with under different statutory provisions and using different language. It is likely that a large number of similar cases will remain stayed pending this appeal.

Sports Direct’s zero hours ‘shame’

Unite has announced that it is launching a confidential advice and support line as part of a campaign to confront abusive ‘Victorian’ work practices at Sports Direct. It is estimated that only 300 out of the 5,000 plus workers at the Shirebrook depot actually have employment contracts, with the remainder on zero hours contracts. Unite’s move follows a Channel 4 Dispatches exposé on working practices at Sports Direct.

EC Consultation on consolidation of Directives.

The European Commission has started a consultation with EU level social partners in order to obtain their views on the possible consolidation of the Directives on collective redundancies, transfer of undertakings and the general framework for information and consultation of workers and aligning the concepts of information and consultation. See http://ec.europa.eu/social/main.jsp?langId=en&catId=89&newsId=2192&furtherNews=yes

Case Summaries

CASES: 

Lyttle and others v Bluebird UK Bidco 2 Ltd (C-182/13); Cañas v Nexea Gestión Documental and another (C-392/13), USDAW and anor v WW Realisation 1 Ltd and ors (C-80/14)

An ‘establishment’ is the entity to which a worker is assigned:

Following the decision in the ‘Woolworths case’ (USDAW and anor v WW Realisation 1 Ltd and ors) that an establishment is the entity to which a worker is assigned, the ECJ has now handed down decisions in Lyttle and Cañas. In Lyttle, the ECJ confirmed that, as in the Woolworths case, ‘establishment’ means the entity to which workers are assigned to perform their duties. Cañas turned on Spanish legislation so has no direct relevance to the UK.

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Habinteg Housing Association Ltd v Holleron UKEAT/0274/14

Harassment by hearsay

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Lee v Ashers Baking Co Ltd and others [2015] NICty 2

Refusal to bake ‘gay cake’ was discriminatory:

In a case that has attracted a lot of media coverage, Lee v Ashers Baking Co Ltd, a Northern Ireland county court has found that there was direct discrimination on the grounds of sexual orientation when a bakery refused to bake a cake with graphics supporting same-sex marriage for a gay customer. Their refusal was on the grounds that they were a ‘Christian business’.

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Sharpe v The Bishop of Worcester [2015] EWCA Civ 399

Reverend was neither employee nor worker:

In Sharpe v The Bishop of Worcester, Rev. Sharpe, Rector of Teme Valley South in the diocese of Worcester, claimed unfair dismissal in relation to protected disclosures he had made. The Court of Appeal had to determine whether he had status to bring claims for unfair dismissal (employee) and other claims (worker).

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Edwards and anor v Encirc Ltd UKEAT/0367/14

Working time does not require worker to be at employer’s control and direction

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Sterling v United Learning Trust UKEAT/0439/14

Incorrect Acas conciliation number leads to claim being ruled out of time:

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CLFIS (UK) Ltd v Reynolds [2015] EWCA Civ 439

Motivation of decision maker only is relevant for purposes of discrimination

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British Broadcasting Corporation v Roden [2015] IRLR 627

Balancing act necessary when considering anonymity order

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Cranwell v Cullen UKEAT/0046/14:

No discretion in the Employment Tribunal for claimant who does not undertake early conciliation

Ms Cullen, who had been the victim of appalling bad treatment from her former employer, including sexual harassment and a physical assault, lodged a claim form and ticked the box indicating that she was exempt from early conciliation. However, none of the exemptions under rule 3 of the Employment Tribunal Rules of Procedure Regulations 2014 applied to her and the EJ rejected her claim on this basis. She appealed.

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