1. Statutory holiday pay: government limits claims to two years' backdated pay with effect from 1 July 2015
Most unlawful deductions from wages claims will be subject to a two year limitation under regulations coming into force on 8 January 2015. This will apply to claims presented on or after 1 July 2015. It represents welcome news for employers facing holiday pay claims following the EAT ruling in Bear Scotland v Fulton, although it will also prompt employees to action, to decide whether to lodge claims prior to July and potentially to challenge the EAT ruling on retrospectivity.
Further details are contained in our blog.
2. Disability discrimination: ECJ rules that obesity is not itself a disability, but can entail limitations which do amount to a disability
The ECJ has recognised that obese employees may have a disability if the obesity “entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one”. However, obesity in itself is not a disability; the focus is on its effects. (Kaltoft v The Municipality of Billund)
The ECJ gave as examples of such limitations: reduced mobility or the onset of medical conditions preventing an employee from carrying out his work or causing discomfort when carrying out his professional activity. It is irrelevant if the employee has contributed to the onset of the disability.
The ECJ largely followed the Advocate General’s opinion (see our blog summary here), although it did not comment on the Advocate General’s suggestion that “most probably” only employees with a BMI of over 40 (morbidly or severely obese) would have sufficient limitations to qualify as disabled.
Employees and job applicants whose obesity entails sufficient limitations to qualify as disability may therefore be able to claim discrimination or harassment, or contend that an employer has a duty to make reasonable adjustments such as larger office furniture or work equipment, preferential parking arrangements, or changes to duties or work location to accommodate reduced mobility.
3. Whistleblowing: normal jurisdictional test applies for unfair dismissal
The usual territorial limits for unfair dismissal claims apply to whistleblowing claims for automatically unfair dismissal or detriment, according to a recent EAT ruling.
An Italian banker, working in Singapore under a contract governed by Singaporean law, whose only connection to Great Britain was that his employer had headquarters there, was unable to bring a whistleblowing claim here. He was unable to satisfy the test for cases where the employee's place of work is not Great Britain, namely that the connection with Great Britain is sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for a tribunal to deal with the claim.
The EAT rejected arguments that a looser test should apply to whistleblowing claims on the basis that European rights to freedom of expression should apply, ruling that these rights do not extend outside European states except in very limited cases. It also rejected the argument that jurisdiction for the claims was necessary to enable UK citizens to exercise their right to hear an expatriate's disclosure of financial malpractice that could affect the UK. (Smania v Standard Chartered Bank)
4. Statutory holiday: workers have right to carry over where prevented from taking holiday for reasons not limited to sickness
Workers who have been unable or unwilling to take their statutory holiday entitlement for reasons beyond their control, including but not limited to sickness, will be entitled to carry holiday over to the next leave year as an exception to the usual rule that holiday entitlement expires at the end of a leave year.
Case law has already established this exception where an employee is unable to take holiday due to sickness and a recent EAT judgment appears to have widened the exception, covering situations where an employer prevents the employee from taking his leave, ie, refuses or would refuse requests for leave. However, it may not be enough that the employer refuses to pay for the holiday if on the facts this does not prevent the employee taking it. (The Sash Window Workshop Ltd v King)
5. Remuneration: deduction of training costs from final salary payment on termination could lead to breach of national minimum wage regulations
Deductions from a final salary payment to repay training costs can only be ignored when calculating whether the employee has received the national minimum wage if the repayment is under a contractual right and due as a result of the employee's misconduct or other conduct for which the employee is responsible (such as a voluntary resignation).
If the deduction for repayment is made on redundancy, ill health absence or other events for which the employee is not responsible, it will not be ignored and could lead to the employer paying insufficient for the final period of employment to satisfy the national minimum wage.
Employers should check whether their contractual provisions require repayment of training costs only where the employee is responsible for termination. (Commissioners for HM Revenue and Customs v Lorne Stewart)
6. Termination: need for careful drafting of dismissal letter highlighted
Employers should avoid attaching emotive labels when informing employees of the findings of disciplinary panels.
The Court of Appeal in Brito-Babapulle v Ealing Hospital NHS Trust upheld the tribunal's view that, on the facts, an employee had been dismissed for misconduct, despite the employer describing the conduct as 'fraud' in the dismissal letter. It was always clear what the allegations were (working in private practice while on paid sick leave). The court therefore did not agree that the employer should have been required to establish that it had a genuine belief that the conduct amounted to fraud. However, the employer might well have avoided costly litigation had it not labelled the misconduct in this way.
7. Termination: dismissal for tweets from private account may be fair
It may be fair to dismiss an employee for posting offensive tweets on a personal Twitter account in the employee's own time, depending on the facts.
In this case the employee had allowed his tweets to be publicly visible and had also permitted 65 of his employer's stores to follow him on Twitter such that their staff and potentially customers could be reading his tweets. On these facts, the tweets could not be considered to be private. The EAT also considered that there was no requirement that tweets actually cause offence if they might do so, nor is it a requirement that the tweets contain derogatory comments about the employer. Whether dismissal is within the range of reasonable responses and therefore fair will depend on the facts.
The case serves as a reminder to employers to review their social media policies. Clear expectations should be set out as to the use of both personal and work-related social media and the potential sanctions for breach. (Game Retail Ltd v Laws)
8. Race discrimination: 'race' may encompass caste
The EAT has confirmed that, although the Equality Act does not yet expressly include caste as a protected characteristic, it is included within the meaning of 'ethnic origins', at least where it is linked to concepts of ethnicity, and is therefore protected under that limb of 'race'. (Chandhok v Tirkey)
9. Tribunal fees: second judicial review challenge rejected
The High Court has rejected Unison's second judicial review claim challenging the introduction of employment tribunal fees in July 2013.
The court ruled that there was insufficient evidence that the recent drop in claims was due to claimants' inability, as opposed to unwillingness, to pay the fees and therefore the union had failed to show that the EU principle of an effective remedy for EU rights had been breached.
The latest statistics also failed to establish indirect sex discrimination and in any event the court considered that the fee regime had legitimate aims and was proportionate. Leave to appeal was granted and the Unison has announced that it will appeal. (R (Unison) v Lord Chancellor and another (No.2))
The Government's promised review of the tribunal fee system is overdue. Liberal Democrat minister for employment Jo Swinson has recently written to the Conservative justice minister Shailesh Vara stating that it should be carried out urgently.
10. New resources
- BIS has made available a new online calculator for maternity, paternity and shared parental leave. It has also updated its shared parental leave guidance to include additional Q&A on early births and the interaction between shared parental leave and pay and sick leave.
- BIS has also updated its employer's guide on right to work checks.
- Public Health England has published a toolkit to help managers support employees suffering from domestic violence.
- A website introducing the Government's new Fit for Work advice service has been launched. Employees and employers can obtain "free, expert and impartial work-related health advice" via the new website and by telephone. The website states that the planned occupational health referral service for employees who have been absent for four weeks or more will be phased in "over a period of months".