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Employment law news
Welcome to the news section which contains articles on employment law news and developments which readers may find informative. You can view the latest articles below or search for articles on a subject matter category such as “News- Settlement Agreements”. Further items of interest can be found by following me on Twitter or Linked In or by subscribing to the news feed on the footer to this site.Please note: These news articles are not intended to constitute legal advice and are only representative of the law at the time the article was written. This site contains older entries and employment law is a fast moving area of law. You should seek specialist advice.
In what is the latest in a number of holiday pay cases, the EAT has held that the NHS must include any overtime pay earned in the reference period in the calculation of holiday pay. This includes both non-guaranteed and voluntary overtime.
The case of Flowers and others v East of England Ambulance Trust UKEAT/0235/17 which concerned NHS staff working under clause 13.9 of the NHS Terms and Conditions of Service (Agenda for Change). The EAT held that this should be interpreted as requiring any overtime pay earned in the three months (or any other reference period agreed) before the employee took annual leave to be included in the calculation of their holiday pay. This should include both non-guaranteed and voluntary overtime pay, regardless of whether an employee is contractually required to work the overtime or any pattern to it being worked.
The EAT held that both non-guaranteed and voluntary overtime pay should be taken into account when calculating the four weeks’ paid leave under Article 7 of the Working Time Directive following previous decisions that this should be the case so long as the payments are sufficiently regular and paid over a sufficient period. Following Dudley Metropolitan Borough Council v Willetts and others UKEAT/0334/16, the EAT held that the overarching principle of EU case law is that holiday pay must correspond to normal remuneration and therefore the employee should not be penalised for being on leave. This rationale would follow the other holiday pay cases concerning commission.
Watch this space as it is understood that the Trust is going to appeal this decision.
The National Minimum Wage legislation is complex and there have been a number of high profile cases in recent years particularly in the care industry concerning whether carers are entitled to the national minimum wage when sleeping or on call.
The National Minimum laws contain highly complex rules about calculating the number of hours worked by a worker and this figure is required to calculate the worker’s average hourly pay and whether this is above the national minimum wage.
The Court of Appeal has recently reviewed the authorities in this area holding that at least one of the earlier EAT decisions was wrong. The case of MenCap v Tomlinson-Blake considered the issue of workers who were on call but asleep at the client’s home and whether this time counted for national minimum wage purposes. The Court of appeal decided that workers sleeping in as carers in the client’s home would only be entitled to have the time counted for national minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity. Sleeping (even if on call but not called) does not count for these purposes.
For those with workers in the care sector it is worth reviewing the decision and taking note of the decisions which the Court of Appeal has called into question in case these are relied on within the business.
Employees get their full employment law rights after two years in employment (with some exceptions to the rule). Often an employer is mindful of this fact and will look to exit an employee who is not performing at the optimum level or for other reasons. The advice has always been not to take this course of action too close to the two year’s service as it is well established that the effective date of termination (EDT) is extended by the statutory minimum period of notice even if you make a payment in lieu. This can mean that an employer leaving it to the wire can get caught out.
The advice must always be of course to take action well before the two year period has expired. Often if an employee if not performing early in the relationship is unlikely to improve unless it is a training issue. This remains sound advice but a recent EAT decision has clarified where the employer dismisses for gross misconduct and is entitled to do so then the statutory notice period is not added onto the termination date to acquire two years service. Of course unless the conduct complained of is so clear this does still cause a grey area but gives an employer another point to argue if the employee does not have sufficient service to bring an unfair dismissal claim as the matter will have to be dealt with as a preliminary issue.
The facts of Lancaster and Duke Ltd v Wileman are that W started her employment with LD Ltd on 22 September 2014. Although she was a competent worker, colleagues found her occasionally rude and aggressive and she had a difficult relationship with one director in particular. On 20 September 2016, LD Ltd dismissed W summarily for gross misconduct (just days before she acquired service). The employer did not follow any process or give the right of appeal as is often the case with dismissals under two years service. A preliminary point had to be decided as to whether the tribunal has jurisdiction to hear her unfair dismissal claim as her EDT was extended by the statutory notice period or not. .
The tribunal decided that the EDT was 27th September (20th September 2016 plus one weeks statutory notice) by virtue of S.97(2) of the Employment Rights Act 1996 which states that where an employer dismisses an employee with less than the statutory minimum period of notice required by S.86 ERA, the EDT is deemed to be the date on which the statutory notice would have expired. LD Ltd appealed and the EAT allowed the appeal.
The EAT found that S.97(2) extends the EDT by ‘the notice required by S.86’. In its view, this brings the entirety of S.86 into play, including S.86(6) as much as S.86(1). S86 states that the right to statutory minimum notice ‘does not affect any right of either party to a contract of employment to treat the contract as terminable without notice by reason of the conduct of the other party’. As such the EAT found that if W was guilty of gross misconduct there could be no extension of the EDT and as the tribunal had not made a finding on this issue, the case was remitted for the tribunal to decide whether or not W was guilty of gross misconduct as a preliminary point.
The EAT noted that this interpretation has been assumed in other cases and in leading employment law commentary texts but had not been expressly determined before.