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Employment Law Roundup – September 2019

September 10th, 2019

Welcome article – TUPE

Employers have an obligation under the National Minimum Wage Act 1998 (NMWA) to keep pay records showing that they pay the national minimum wage (NMW). This requirement continues after employment has ended. The Employment Appeal Tribunal has looked recently at what happens when there is a TUPE transfer – does the transferor have to keep and produce those records for employees who have transferred to another employer?

In Mears Homecare v Bradburn, the employees transferred under TUPE. A few months later they requested pay information from their old employer (the transferor) as part of a query about payment of the NMW. The transferor didn’t respond within the time limit and the employees lodged an employment tribunal claim. The tribunal decided that the transferor was the relevant ’employer’ for the purposes of the NMWA. The query about pay related to the employees’ employment with the transferor and the duty to retain and produce pay records lasted beyond the end of employment. The tribunal ordered the transferor to pay compensation.

The Employment Appeal Tribunal disagreed. The employees’ employment had not ended – it had transferred to the transferee. When there is a TUPE transfer, the transferee steps into the shoes of the transferor in relation to the employees’ contracts. All rights, duties and obligations pass from transferor to transferee, including the obligation to keep and produce NMW records. The transferee was therefore the relevant employer, not the transferor. Any request for pay information should be made to the transferee, even though the request was for pay information which pre-dated their employment of the employees.

In this case, the EAT judges accepted that this situation is inconvenient for transferees who are required to produce another business’s pay records. They said that businesses should ensure that full pay records pass from transferor to transferee as part of the transfer. It’s worth remembering that criminal liability does not transfer under TUPE. Transferors should therefore ensure that the contractual paperwork also deals with the return of pay information if the transferor is ever prosecuted in relation to transferred employees. Read the rest of this entry »

Employment law Roundup – July 2019

July 3rd, 2019

Holiday pay

The holiday season is upon us and the next instalment of the Flowers v East of England Ambulance Trust saga has arrived from the Court of Appeal. The case involves voluntary overtime and whether it should be included when calculating holiday pay. European law says that holiday pay should be based on ‘normal remuneration’. If pay or hours vary, then an employer must look at the previous 12 weeks and pay the average.

In Flowers, the ambulance workers said that two types of overtime should be included in holiday pay: non-guaranteed overtime (when they were required to stay late at the end of a shift) and voluntary overtime. They brought claims based on what their contracts said as well as the provisions of the Working Time Directive. The employment tribunal said non-guaranteed overtime should be included in holiday pay, but voluntary overtime should not. The Employment Appeal Tribunal disagreed and said both should be included.   Read the rest of this entry »

Employment Law Roundup – June ’19

June 5th, 2019

Disability discrimination

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.

In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled. Read the rest of this entry »

Employment Law Roundup – May ’19

May 7th, 2019

Usually, employment law cases are conducted in public and the press may report on them. In cases involving sexual harassment and sexual offences, employment tribunals may grant privacy orders in the interests of justice or to protect people’s privacy under the European Convention on Human Rights (‘ECHR’). Orders can include anonymising the parties, holding hearings in private and restricted reporting orders. In granting these orders, the employment tribunal must properly balance privacy rights against the principle of ‘open justice’.

In A and B v X and Y and Times Newpapers Limited, a household name (Y) was accused of harassment, including alleged sexual offences. A and B brought claims against their employer (X) and Y. The employees were entitled to anonymity under the Sexual Offences (Amendment) Act 1992. They also sought an anonymity order in the employment tribunal. X and Y also asked for anonymity and a restricted reporting order. The employment tribunal refused everyone anonymity. However, they granted a restricted reporting order until after any remedy hearing. The judge said the employees had the equivalent of such an order because of their anonymity under the Sexual Offences Act, and Y should be similarly protected. It would ensure Y remained innocent until proven guilty and guard against misreporting. Read the rest of this entry »

Employment Law Roundup – April 2019

April 8th, 2019

Discrimination arising from disability is where an employer treats an employee less favourably because of ‘something’ which results from their disability, and which can’t be justified. The Employment Appeal Tribunal has recently looked at whether it is discriminatory to discipline an employee for failing to follow an instruction they mistakenly think will exacerbate their disability. Read the rest of this entry »