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Employment Law Changes in 2014.

Date: 17/02/2014 | Employment & HR, Environment & Regulation

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On the back of a very busy 2013 which saw a number of significant changes to UK employment law, we thought it would be useful to look at some of the key cases which will be decided in 2014.

Holiday Pay

Neal v Freightliner Ltd (EAT)

  • The employment tribunal controversially held that a worker’s overtime and shift premiums should be included in the calculation of holiday pay. This decision is to be appealed to the Employment Appeals Tribunal (EAT).
  • In this case a comparison was made between UK and EU law.  As members of the EU all UK law must be interpreted and implemented in line with EU directives. The EU Directive states that workers holiday pay should include a workers basic salary and any inclusive payments that are intrinsically linked with the work they undertake, such as compulsory and voluntary overtime and commission payments. At present most businesses in the UK will only pay the basic salary and therefore when this case comes to appeal, the result could have a large impact on UK Businesses.

Lock v British Gas Trading Ltd (ECJ)

  • In another similar case considering holiday pay, the employment tribunal referred to the ECJ a number of questions on the relationship between holiday pay and commission, including whether or not “normal pay” when calculating pay for annual leave should include contractual payments received through commission.
  • The short answer to this was “yes” in the opinion of Advocate General Bot, where the commission is a consequence of the worker’s own work.
  • However, a full decision on the matter will be released at some point this year.

Disability Discrimination

FOA, acting on behalf of Karsten Kaltoft v Billund Kommune (ECJ)

  • A Danish court has referred to the ECJ various questions about whether or not obesity is covered by EU legislation, including whether or not obesity can be deemed to be a disability under the Equal Treatment Framework Directive. A previous UK case found that obesity was not in itself a disability but it might make it more likely that someone suffered from an impairment which could be a disability. 
  • The conventional view is that obesity does not, of itself, render someone disabled. Therefore, merely because someone is obese does not trigger a duty of reasonable adjustment. However, the consequences of obesity, such as reduced mobility, if they are both substantial and long-term, may well mean that the person concerned falls within the statutory definition resulting in this case being referred to the ECJ.

Unfair Dismissal

Brito-Babapulle v Ealing Hospital NHS Trust 2013 irlr 854 (Brief 982)

  • The Employment Appeals Tribunal (EAT) decided that if an employee has committed an act of gross misconduct, it does not automatically mean that dismissal is within the band of reasonable responses.
  • The Claimant was a consultant for both private and NHS patients. Whilst the Claimant was on certified sick leave and receiving sick pay from the NHS employer, she worked for her private patients. Her NHS employer decided that this was an act of gross misconduct and she was consequently dismissed.
  • The EAT decided that dismissal is not always a reasonable response to gross misconduct because there may be mitigating factors, such as an employee’s long service or previous unblemished record, that would render dismissal unfair.
  • This case has now been considered by the Court of Appeal and the ultimate decision is one to look out for!

Maternity and Parental Rights

CD V ST 

  • This case discusses the issue that mothers who are having a child through surrogacy arrangements are not given the same rights in maternity, and adoption leave. At present women who require leave to care for a baby that they have responsibility for (intended mother), through a surrogacy arrangement have to split a 14 week period between themselves and the surrogate. 
  • With the introduction of shared parental leave coming into play from April 2015 it will be interesting to see how this case moves forward.

Disciplinary Hearings

Yapp v Foreign and Commonwealth Office 2013 IRLR 616

  • The High Court held that the failure to treat a senior diplomat fairly during an investigation of allegations of misconduct and withdrawing him from his post as the High Commissioner to Belize amounted to breaches of his employment contract.
  • In particular, the employer should have ensured that different people carried out the investigation and disciplinary hearing and, before withdrawing the employee from his post, it should have informed him of the allegations against him and conducted a preliminary investigation. 
  • The Court of Appeal is expected to hear an appeal in this case at some point this year.

Zero Hour Contracts

Gabriel-Abraham v Sports Direct

  • Sports Direct were at the forefront of the mass media surrounding zero-hour contracts. They engage 20,000 workers on these types of contract. This means, that is some cases, they don’t receive paid holidays, sick pay or bonuses which are available to full time staff. This is being challenged as indirect sex discrimination under the Part-Time Workers Regulations. 
  • This is due to be heard in the Employment Tribunal later in 2014.

If you would like any more information about any of the cases listed and the impact that these may have on your business, please do not hesitate to contact Davidson Chalmers’ Employment Team, who will be happy to provide their advice and assistance.

Disclaimer
The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.


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