Employment Law Update – Oct 2014

TUPE (Transfer of Undertakings Protection of Employees)

The EAT (Employment Appeal Tribunal) has now ruled that looking at the percentage of time an employee spends on an activity does not determine whether an employee is ‘in scope’ to transfer under the TUPE legislation.  Instead, the key factors will involve looking at how the work has been ‘organised’ and whether a particular employee is ‘assigned to an organised grouping of employees’.  What this means in practise is that some employees who may spend a smaller amount of time on an activity (e.g. 30%) could still be protected by the TUPE legislation in the event that a transfer takes place.

 

Antenatal Rights

As part of the Shared Parental Leave rulings that will impact us from Dec 2014 and April 2015, we have seen the rights of fathers, partners (either sex) and intended parents of surrogacy change.  From 1st October 2014, they will be entitled to unpaid time off to accompany pregnant women to two antenatal appointments – with a maximum of 6.5 hours per appointment.

 

Increased Rights for Returners

Sticking with Family Friendly processes, with effect from 1st December 2014, employees returning from paternity and adoption leave will have improved rights to return to their old job.

 

Unfair Dismissal and Reserve Forces

Employers with employees in the Reserve Forces should be aware that the rights of this group have increased in relation to protection from unfair dismissal.  If employers are in any doubt about any disciplinary or dismissals involving Reserve Forces, it’s worth seeing specific advice before taking any action.

 

When is ‘on call’ really on call?

Following the case of Truslove and Anor v Scottish Ambulance Trust, employees who are ‘on call’ even if they can sleep during that period, must not count this time as a ‘rest period’ under the Working Time Regulations.

 

Restrictive Covenants

Much debate over the use and benefit of restrictive covenants still exists.  The recent case of Prophet PLC v Huggett has highlighted the importance of getting the wording right.  The wording of the restrictive covenant in this case was ‘rendered useless’ by the courts as it stated that Huggett could not sell Prophet Software once he left the employ of the company.  As no one else sold Prophet’s software, this was a pointless clause, but Prophet’s argument was that they were referring to similar products.  Surprisingly, the courts took a ‘common sense’ approach rather than applying the covenant in literal form stating that something must have “gone wrong” with the drafting.  It then reinterpreted the wording with a more pragmatic view.

 

The lesson from this is: the more sensible the covenant, the more likely it is to be enforceable.

 

Zero Hours Contracts

The government has announced the plan to ban exclusivity clauses in zero hours contracts – the government consultation is due to end in early November 2014 so we expect more information as to the legislative requirements in this area towards the end of the year – watch this space!

 

Flexible Working – an influx of requests?

30th June 2014 saw the extension of flexible working legislation to all employees with 26 weeks service (as opposed to the previous requirements based on having dependents in particular categories).  With the exception of one sector, being the NHS, I am not aware that this has resulted in any dramatic changes or increases in the requests coming from employees so for the majority of employers it has had little impact, but employers must make sure that their policies and procedures reflect these changes in statute.

 

Is obesity a disability?

A hot topic at the moment and as yet we have no ‘clear’ answer – the latest it that ‘it could be’!  Obesity could potentially be a disability (and therefore protected under the Equality Act) if it hinders full and effective participation in work.

 

Holiday / Annual Leave

The Lock v British Gas case has highlighted the concerns around what is used when calculating holiday pay for those employees who earn commission or overtime.  The ECJ (European Court of Justice) has ruled that commission should be included in when calculating holiday pay but we have yet to see what this means in practice as we are awaiting guidance from tribunals in relation to the calculation of holiday pay.  This could have a big impact – both financially and administratively – for some employers so watch this space.

 

On a separate note, it is worth noting that workers should be accruing holiday during periods of sickness absence.

 

ACAS Conciliation

May 6th saw the introduction of compulsory conciliation for individuals bringing a claim

 

And finally….. National Minimum Wage

New rates from 1st Oct 2014:

£6.50 for 21 years and over

£5.13 for 18-20 year olds

£3.79 for under 18s who aren’t on apprentice schemes

£2.73  Apprentices

Other News