ECJ decides two more collective consultation cases

Following its decision last month in the "Woolworths" collective redundancy consultation case, the ECJ has handed down two further decisions in cases that were heard with the Woolworths case as they involved similar issues.

Lyttle v Bluebird UK Bidco 2 concerned the closure of 12 Bonmarche stores in Northern Ireland in March 2012, resulting in 105 redundancies. Article 216 of the Employment Rights (Northern Ireland) Order 1996 is consistent with s188(1) of TULRCA, and states that the duty to consult is triggered "where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less". The ECJ did not mention the Woolworths decision handed down two weeks previously, but took the same view, holding that "it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the 'establishment". On that basis, Article 216 – like s188(1) is consistent with the European Collective Redundancies Directive. The ECJ went on to note that a single store as in this case was capable of being an establishment, but – as in the Woolworths case, where the same question will be returned to the employment tribunal – this is a matter of fact to be considered in each case.

Meanwhile, in Rabal Cañas v Nexea Gestión Documental the ECJ was required to consider the meaning of "undertaking", and not "establishment", since that is the word used in the context of collective consultation obligations in Spanish legislation. It held that use of "undertaking" is contrary to the Collective Redundancies Directive where its effect is to preclude the required information and consultation procedure taking place. It would only apply if using ‘undertaking’ instead of ‘establishment’ was more favourable to workers.

Exclusivity clauses in zero-hours contracts banned

Since 26 May, exclusivity clauses in zero-hours contracts are now unlawful in the UK. Section 153 of the Small Business, Enterprise and Employment Act 2015 inserts a new section 27A into the Employment Rights Act 1996 which states that any provision which "prohibits the worker from doing work or performing services under another contract or under any other arrangement, or prohibits the worker from doing so without the employer's consent, is unenforceable against the worker".

The definition of a zero hours contract is very broad, described as a contract of employment or other worker's contract under which the worker undertakes to do work if the employer makes it available, but there is no certainty that any such work will be made available.

However, without a means of enforcement, the ban may not have a great effect.  Before the General Election, the then coalition government promised a review of measures to regulate the use of zero-hours contracts but no further announcement has yet been made.

Queen's Speech announces employment law changes

The Queen's Speech last month announced some changes which will affect employment law, including a promise that those working 30 hours per week on the national minimum wage will not pay income tax.

Of particular interest to employers with unionised workforces, a new Trade Unions Bill will require a minimum threshold of 50% of voters to turn out to vote on union ballots (with the requirement for a simple majority of votes in favour), whilst industrial action in the health, education, fire and transport services will require that in addition, 40% of those entitled to vote, vote in favour of striking.  The Bill will also aim to prevent the intimidation of non-strikers, and put time limits on mandates following a ballot in favour of industrial action.

The Childcare Bill will increase the provision of free childcare for three and four year olds from 15 to 30 hours per week (for 38 weeks of the year) for eligible working parents.

The government wants to reduce demand for skilled migrant workers and end the exploitation of the low-skilled.  Illegal working will be made a criminal offence (with illegal migrants' wages being seized as the proceeds of crime), and a new enforcement agency will be created to take action against exploitative employers. It will be illegal for employment agencies to only recruit from abroad without advertising those jobs in Britain.

Government to review tribunal fees regime

The Government has announced that it is starting a review of the effect of employment tribunal fees, and of the fees remission scheme introduced in October 2013.  The review was promised in June last year after concerns were raised about the dramatic fall in numbers of claims since fees were introduced in July 2013.

The Employment Tribunal Fees Post-Implementation Review will determine how successful the introduction of fees has been in achieving the original objectives to transfer a proportion of the costs of the tribunals to users and to encourage parties to resolve disputes in other ways while maintaining access to justice.

Meanwhile, UNISON's appeal against the High Court's dismissal of its judicial review challenge to the introduction of fees in the employment tribunals will be heard this month.

Acas guidance on calculating holiday pay

Following the decision of the EAT in Bear Scotland Ltd and others v Fulton and others and the case of Lock v British Gas (which is due to be appealed this summer) that non-guaranteed overtime and commission must be taken into account when calculating statutory holiday pay, Acas has published guidance on calculating holiday pay.

The guidance explains what should be considered when calculating holiday pay, pay for different working patterns and payment in lieu of holidays.

Wales likely to ban e-cigarettes in the workplace

The Welsh assembly's new Public Health Bill proposes a ban on e-cigarettes in public spaces in Wales and is likely to take effect in 2017.  As we reported in Law at Work in April this year, the use of e-cigarettes in the workplace is controversial and this will be the first such ban on their use in the UK.

Whilst the ban will be of direct relevance to businesses which operate in Wales, it may set a barometer for "good practice" elsewhere.

Mortgage Credit Directive – UK implementation of new remuneration rules

The Mortgage Credit Directive (2014/17/EU) is relevant to firms that offer consumer finance relating to or secured on residential property. 

As part of the organisational obligations in MCD, firms are required to adopt and embed remuneration practices that do not have the cause or effect of encouraging poor conduct within the mortgage industry.

The measures do not necessarily require profound change; many firms will be tackling this as part of compliance with the CRD IV package and these are similar to moves across the financial services industry (e.g. MiFID II). Nevertheless, firms may want to take a lateral glance at emerging Financial Conduct Authority guidance on performance management and the MiFID II approach to managing conflicts of interest.