Emplaw Monthly - March 2015
Employment Law News
Unpaid Parental leave
Right to attend adoption appointments
Shared Parental Leave
Adoption leave extended to fostering
National Minimum Wage
Increase in a week’s pay
Increase in statutory payments
Driving while under the influence of drugs
Tribunal Quarterly Statistics
Acas shared parental leave materials
Revised Acas Code on Disciplinary and Grievance Procedures
Small Business, Enterprise and Employment Act 2015
Commission earned on sales achieved to be included as part of holiday pay
An employment tribunal has ruled in the long running case of Lock and ors v British Gas Trading Ltd that commission payments earned on sales achieved by an energy trader must be taken into account when calculating holiday pay and that the Working Time Regulations (Regulation 16(2) is the relevant provision) were capable of being interpreted in this way.
Discrimination on grounds of ‘left wing social democratic beliefs’
The EAT in GMB v Henderson/ Henderson v GMB has overturned a tribunal decision that Mr Henderson had suffered unlawful direct discrimination and harassment on the basis of his ‘left wing social democratic beliefs’. Mr Henderson was a regional organiser for the GMB whose job included undertaking political work as part of the region’s political efforts on behalf of the Labour Party. He was suspended in connection with a number of matters including challenging the authority of line management and the regional secretary and making serious allegations of collusion between the GMB and the Labour party in respect of suspension from the Labour party.
ET lay member could not compare himself to an ET judge for purposes Part Time Workers Regulations.
The choice of a comparator in discrimination cases is often a very difficult one. In McGrath v Ministry of Justice, Mr McGrath, an employment tribunal lay member complained that as a part time judicial officer the MoJ excluded him from the judicial pension scheme. He brought a claim under the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations and identified as his actual comparator a full time salaried employment judge.
ET does not have power to make costs order for issue and hearing fee where they have been paid by the union.
The EAT in Goldwater v Sellafield Ltd has made a costs ruling that where the issue fee and hearing fee were paid by the union GMB, under Rule 34A(2A), no costs order can be made. The wording of Rule 32A(2A) provides, ‘”costs” includes fees… incurred by or on behalf of a party…in relation to the proceedings’.
TUPE can apply where services are provided to a group of persons.
A service provision transfer under TUPE 2006 occurs where there is a relevant transfer. In the context of a service provision change, this is where a person ceases to carry out activities on its own behalf and assigns them to another person to carry out; the activities cease to be carried out by a contractor on a person’s behalf and are reassigned; or where the activities are taken in-house.
Bus driver with Type 2 diabetes was not disabled.
The EAT in Metroline v Stoute has ruled that a bus driver who suffered from Type 2 diabetes and who was dismissed for gross misconduct, was not disabled. Mr Stoute claimed unfair dismissal, discrimination arising from a disability and failure to make reasonable adjustments. This appeal was on the sole issue of whether Mr Stoute was disabled for the purposes of the Equality Act 2010.
Admissions during disciplinary process.
In CRO Ports London Ltd v Wiltshire, the EAT held that a tribunal was wrong to find that a summary dismissal for gross misconduct was unfair because the employer should have undertaken further investigations even though during a disciplinary interview Mr Wiltshire admitted that a practice he carried out was a dangerous act. The ET was not entitled to have regard to its own findings as to what had happened on the evidence it had heard. It was obliged only to test the employer’s decisions, including the decision to dismiss itself, against the range of reasonable responses of the reasonable employer, not by applying its own view as to the respective culpability of the parties on the facts that it, the ET, had found.
Constructive dismissal is not an act of harassment in itself.
The background to Timothy James Consulting Ltd v Wilton was that an employee who had been in a relationship with one of the company owners (who then entered into a relationship with another employee) resigned after the working relationship became untenable and claimed constructive unfair dismissal, harassment and victimisation.
10% uplift does not apply to injury to feelings awards.
In Chawla v Hewlett Packard, the employer had a provision criterion or practice of shutting down access to email and internet for employees on long-term sickness absence. The ET held that this substantially disadvantaged Mr Chawla who was disabled in that he was not informed about important developments to his terms and conditions of employment and his benefits.
Subject access request was proportionate.
The High Court has ordered that a data subject access request made by Mr Kololo who was facing the death sentence in Kenya to, among others, the Metropolitan Police Service (MPS) should be granted.
No breach of Article 8 where individuals’ personal details were retained on police database.
The Supreme Court in R (Catt and T) v Commissioner of Police for the Metropolis has considered an appeal concerning the systematic collection and retention by police authorities of electronic data about individuals. The issue was whether the practice was lawful or contrary to article 8 of the European Convention on Human Rights (respect for private and family life, home and correspondence). Mr Catt objected to the retention of police data concerning his involvement in political demonstrations going back as far as 2005.