Emplaw Monthly - February 2015

Employment Law News

New Statutory Rates

The Employment Rights (Increase of Limits) Order 2015 has been made. For claims where the ‘appropriate date’ for the cause of action is on or after 6 April 2015, the limit on compensation for unfair dismissal will increase from £76,574 to £78,335 and the limit on a week’s pay will increase from £464 to £475.
The minimum basic award for certain unfair dismissals (e.g. for trade union membership, acting as an employee or workforce representative, health and safety duties) will increase from £5,676 to £ 5,807 from 6 April 2015.
 
The Welfare Benefits Up-rating Order 2015 increases statutory maternity, adoption, paternity, additional paternity and shared parental pay from £ 138.18 to £139.58 from 5 April 2015. It increases the weekly rate of statutory sick pay from £87.55 to £88.45 from 6 April 2015.
  

National Minimum Wage Regulations- date for coming into force
 
The draft National Minimum Wage Regulations 2015 have been laid before Parliament and will come into force on 6 April 2015.
 
Updated Fit Note guidance
 
The Department for Work and Pensions has updated its guidance on fit Notes for employees, employers and managers.
 
https://www.gov.uk/government/publications/the-fit-note-a-guide-for-patients-and-employees
https://www.gov.uk/government/publications/fit-note-guidance-for-employers-and-line-managers

 
Requirement to provide criminal record will become illegal
 
On 10 March 2015, section 56 Data Protection Act will come into force, making it illegal for an employer to require an employee or job applicant to provide a copy of his criminal record by making a subject access request. Such enforced subject access typically occurs where an employer wishes to see a potential employee’s criminal record, but chooses not to /is not entitled to access  it via the  established DBS system. See https://ico.org.uk/media/for-organisations/documents/1042608/enforced-subject-access-s56.pdf

CASES: 

Sparks and others v Department for Transport [2015] EWHC 181: DfT wrong to unilaterally alter absence management policy terms.

In Sparks and others v DfT, the High Court held that terms relating to attendance management were ‘apt for incorporation’ into employees’ contracts and could not be unilaterally altered by the DfT.

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Norman and others v National Audit Office [2014] UKEAT/0276/14: Right to vary provision was not clear and unambiguous

The EAT in Norman and others v National Audit Office found that an Employment Tribunal had erred in concluding that a term in the letters of appointment of Ms Norman and others enabled the employer to vary the contract unilaterally; the term was unclear and ambiguous. Clause 2 in the offer letters provided: ‘detailed particulars of conditions of service [found in the relevant sections of the HR manual] are subject to amendment; any significant changes affecting staff in general will be notified […]’ followed by notification details.

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Hart v St Mary’s School (Colchester) Ltd [2015] UKEAT/0305/14: No unilateral variation where clause was not clear and unambiguous.

In Hart v St Mary’s School, the EAT again decided that a clause purporting to reserve to the employer the right to vary the contractual terms did not confer upon the employer a unilateral power of variation. In this case, Ms Hart, a part-time learning support teacher, worked three days a week.

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Braithwaite and others v HCL Insurance BPO Services Ltd [2015] UKEAT/152/14/0502: Removal of benefits on standardisation of terms was justified:

A common problem in the context of transfers of businesses is the harmonisation of terms across the business. This case is not a TUPE transfer case as such (the tribunal had held that the dismissals that had occurred were not TUPE transfer related dismissals) but it addresses the problems with standardisation of terms, in this case arising from a TUPE transfer. In Braithwaite and others v HCL Insurance, Ms Braithwaite and other employees were previously employed by a business called Liberata and had transferred under TUPE 2006 to HCL.

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Stack v Ajar-Tec Ltd - Company director and shareholder was an employee [2015] EWCA Civ 46

In Stack v Ajar-Tec Ltd Mr Stack, a director and major investor and shareholder in Ajar Ltd who carried out unpaid work for it brought claims for unfair dismissal and unlawful deductions from wages when he was removed as a director following a disagreement with his fellow investors. To bring these claims, he had to show that he was both a worker under section 230(3) Employment Rights Act 1996 (for the unlawful deductions claim) and an employee under section 230(1) (unfair dismissal).  Mr Stack had entered into business with two other investor/shareholders.

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Carroll v Mayor’s Office for Policing and Crime [2015] UKEAT/0203/14: - Appeal out of time despite ET error

Time for lodging an appeal with the EAT runs from the date on which written reasons are sent to the parties (Rule 3(3)(a)(i) EAT Rules 1993), not the date of receipt. There is a discretion to extend time but this is exercised only in exceptional cases.

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Williams v Leeds United Football Club [2015] EWHC 376: Summary dismissal fair for earlier misdemeanor.

 

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Land Registry v Houghton and others [2015] UKEAT/0149/14: Non payment of bonus where employee received warning for disability related sickness absence was discriminatory

The Land Registry in Land Registry v Houghton operated a discretionary bonus scheme which included a term that an employee who received a formal warning in respect of sickness absence during the relevant financial year would be ineligible to receive the bonus. The Land Registry had put in place reasonable adjustments that would adjust the trigger points that would lead to a warning but Ms Houghton and others received warnings. They brought claims for discrimination arising from disability.

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Shreshtha v Genesis Housing Association Ltd [2015] EWCA Civ 94:

Dismissal for excess mileage claimed was fair.

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Rubins v Latvia [2015] ECHR 2: Dismissal of university professor was breach of the right to freedom of expression.

Article 10 of the European Convention on Human Rights (ECHR) provides that everyone has the right to freedom of expression. It is a qualified right so that interference can only be justified if it was prescribed by law, pursued a legitimate aim and was necessary in a democratic society for the achievement of such an aim. Latvian law allows for an employee to be dismissed for prescribed reasons if he had committed significant infringements of his terms of employment or the employee had fulfilled his duties in a way that disregarded good morals.

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Begraj and another v Secretary of State for Justice [2015] EWHC 250: No claim for breach to right to a fair trial when fresh ET hearing possible

Article 6 of the ECHR provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

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Mari v Reuters Ltd [2015] UKEAT/0539/13: Employee could not claim constructive dismissal after 18 month delay

In Mari v Reuters Ltd, Ms Mari, a systems support analyst, was off sick from work with stress, anxiety and depression. She claimed that she had been placed under an unreasonable workload and bullying working conditions. During a lengthy period of sickness absence she accepted contractual sick pay until it expired after 39 weeks. She then resigned and claimed constructive unfair dismissal.

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Rynda (UK) Ltd v Rhijnsburger [2015] EWCA Civ 75: Single employee was an organised grouping for purposes of TUPE 2006.

Rynda Capital Partners Europe LLP owns a large portfolio of properties across Europe (known as the "H20 properties") through a complicated corporate structure. In May 2009 the various subsidiary companies entered into management agreements with Drivers Jonas under which Drivers Jonas agreed to manage all the H20 properties.

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