With 2016 just around the corner, we review some of the highs and lows of employment law in 2015.
Next year we will be talking about Tribunal fees (still), holiday pay (again), the Trade Union Bill and the impact of the Scottish Parliamentary elections and EU Referendum.
- Zero hours contracts - exclusivity Clauses were banned. The UK Government also issued guidance on their use.
- The annual leave/ sick leave saga - the EAT held in Plumb -v- Duncan Print Group Ltd that workers on long-term sick leave are entitled to carry forward untaken holiday up to 18 months after the end of the leave year in which that holiday accrued.
- Shared parental leave - had a slow start but the UK Government announced its intention to extend the right to grandparents in 2018.
- Employment Tribunal fees - Unison failed to persuade the Court of Appeal to uphold its challenge to the Employment Tribunal fees regime, although permission has been sought to appeal to the Supreme Court. The Scottish Government announced its intention to abolish fees in Scotland.
- Right to be accompanied - the High Court accepted in Stevens -v- University of Birminghamthat a refusal to permit an employee to be accompanied to a disciplinary investigation meeting by a companion of his choice (not a colleague or trade union representative) constituted a breach of the implied obligation of trust and confidence.
- Collective consultation - the CJEU confirmed in USDAW & anor -v- WW Realisation 1 Ltd (in liquidation) & ors that the obligation to collectively consult in respect of redundancies is only triggered where 20 or more redundancies are proposed at an “establishment”, rather than across the whole organisation.
- Role of HR - we were reminded in Ramphal v Department for Transport that the role of HR in disciplinary processes should be to advise the disciplining manager on procedure and the law, and on sanction level to ensure consistency, but not to influence the manager’s decision on culpability in respect of the allegations.
- Holiday pay - we talked about holiday pay – again. The Court of Appeal in Northern Ireland held in Patterson -v- Castlereagh Borough Council that voluntary overtime should be included in holiday pay if it is “normally carried out by the worker and carried with it the appropriately permanent feature of the remuneration to trigger its inclusion in the calculation”. Meanwhile, the Lock –v- British Gas Trading Ltd litigation continues, with the latest appeal to the EAT having been heard in December.
- Working time – in the case which has to win the prize for catchiest name of 2015 (Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL,), the CJEU caused headaches for some employers in finding that travel time to and from the first job of the day for employees with no fixed base counts as working time for the purposes of the Working Time Directive.
- Gender pay reporting - everybody was talking about the gender pay gap and the UK Government confirmed its proposals to require larger public, private and voluntary sector employers to publish gender pay gap information. Asda and Sainsbury’s are already facing equal pay claims from female staff.
- Employment status - Uber drivers in the UK raised proceedings aimed at establishing that they are employees or workers and therefore entitled to basic rights such as the National Minimum Wage and protection under the Working Time Regulations, rather than self-employed “partners” as Uber asserts.
- And finally ...
- Jeremy Clarkson revved his engine for the BBC for the last time following an altercation with a colleague, but has circumvented his restrictive covenants by moving to on-demand streaming service, Amazon Prime.
- Chelsea reportedly used Jose Mourinho’s alleged breach of his employment contract in respect of his behaviour towards club doctor, Eva Cameiro, to negotiate the bargain exit package of £250,000 per week up to a maximum of £10m instead of the £40m Mourinho would otherwise have been due. 2016 may yet see the Special One making an appearance in the Employment Tribunal as Cameiro has raised claims against him and the club