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5 April 2016 0 Comments Posted in Employment, Opinion

No implied term that a period of lay-off should be reasonable

Posted by , Partner

In Craig v Bob Lindfield and Son Limited the EAT has held that there is no implied term of reasonableness in a contractual provision which allows employees to be laid off or put on to short term working for an indefinite period without pay. The EAT considered two conflicting EAT decisions and found that the Tribunal had correctly followed the later decision of Kenneth McRae and Co Limited v Dawson. This meant that the employee, who resigned after being laid off for about 5 weeks without pay, had not been constructively unfairly dismissed. There had been a genuine downturn in work which had led to the employer operating the contractual lay-off clause and the employer had properly followed the statutory scheme under which a redundancy payment does not have to be paid if there is a reasonable expectation that further work will become available within 4 weeks.

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Holiday pay

Posted by , Partner

The holiday pay case of Lock v British Gas, which has gone all the way to the ECJ and back to the EAT, has finally been decided in the EAT. The ECJ had held that Mr Lock’s holiday pay should be calculated by using basic salary and his results-based commission, and not just his basic salary. The EAT has held that the domestic legislation can be interpreted in a way which conforms to the EU law on holiday pay and so the appeal by British Gas was dismissed.

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Ill health early retirement – no duty to advise employee about ill health pension option – LGPS

Posted by , Partner

A complaint was made to the Pensions Ombudsmen by Mrs Sarah Ascough, the widow of a member of the LGPS who died in 2014. The member had applied for and been awarded an actuarially reduced ill health early retirement (IHER) pension from deferred status under regulation 31 of the Local Government Pension Scheme (Benefits Membership and Contributions) Regulations 2007, 4 months after he was made redundant, rather than an enhanced IHER pension under Regulation 20 while he was still employed. The outcome was that the Ombudsman considered that the employing authority which operated the LGPS had no duty to advise the member of the option of applying for an enhanced ill health early retirement pension from active status when he was made redundant in 2013 although the employing authority knew he had taken sick leave in 2010 for a brain tumour. The Ombudsman held that, even if the member had informed his employer about his deteriorating health whilst still employed, which he did not do, unless he had applied for an ill health pension his employer was under no duty to advise him of the option of taking ill health retirement. The Ombudsman also held that there was no evidence that the local council, his employer, had misled the member into believing that his pension would be the same under either regulation.

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Unfair to stop employee responding to changed misconduct case

Posted by , Partner

In John-Charles v NHS Business Services Authority the EAT has held that it was not unreasonable for someone making a decision on a disciplinary hearing to take account of an existing warning when deciding to dismiss the employee for misconduct even though the warning was subject to an outstanding appeal. A long time had passed since the warning was issued and the Tribunal was entitled to conclude that the decision-maker’s belief that the employee was not pursing his appeal against the warning was a reasonable one. Nonetheless the decision-maker had failed to inform the employee that she was minded to dismiss only when she learned of the warning, and should have given him an opportunity to make representations on this point which, as a result, amounted to a breach of natural justice rendering the dismissal unfair.

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1 April 2016 0 Comments Posted in Employment, Opinion

New Wage Hike for Over 25s

Posted by , Partner

Employers will be digging into their pockets again following today’s introduction of the National Living Wage for workers over 25, writes Employment Partner Gemma Ospedale.   Some 1.3 million full and part time workers will benefit from the National Living Wage which is currently set at £7.20 per hour.  Food and Fashion retailers and the hospitality sector will be the hardest hit.  Some business leaders have condemned the compulsory increase in wages, claiming that it will lead to significant job cuts.   The National Living Wage sits alongside the National Minimum Wage, and represents a top up for workers over 25.  A new team of compliance officers in HMRC will investigate the most serious cases of employers not paying the National Minimum Wage and National Living Wage.  The team will have the power to use all available sanctions, including penalties, prosecutions and naming and shaming the most exploitative employers.  Penalties for non payment of the NLW and NMW are to be doubled.

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18 March 2016 0 Comments Posted in Employment, Opinion

Court of Appeal confirms uplift in General damages is obligatory

Posted by , Partner

In 2009, Lord Justice Jackson undertook a Review of Civil Litigation Costs in England and Wales. Amongst these extensive reforms was the eradication of recoverable success fee uplifts and, in their place, the claimant should recover ten percent more by way of general damages.

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16 February 2016 0 Comments Posted in Employment, Opinion

Injury to feelings awards likely to be taxable

Posted by , Partner

A recent decision of the Upper Tribunal of the Tax and Chancery Chamber has knocked on the head the concept that most injury to feelings awards can be paid tax-free. Unless the injury in respect of which the award is made is unconnected to any dismissal, it is highly likely that, as a result of this decision, it will now become taxable.

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Comparators in age discrimination claim

Posted by , Partner

In Donkor v Royal Bank of Scotland, the EAT has looked at the question of comparators in a claim for direct age discrimination.

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Instruction not to speak Russian at work is not race discrimination

Posted by , Partner

In Kelly v Covance Laboratories Limited, the EAT has upheld an Employment Tribunal decision that the employer was not directly discriminating or harassing an employee on the grounds of her race in requiring her not to speak Russian at work. The employer had a reasonable explanation for this which was wholly unrelated to the employee’s nationality or national origins.

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Racial Discrimination – Detriment

Posted by , Partner

The case of Cordant Security Limited v Singh is an interesting factual case. The Claimant brought a claim of direct race discrimination alleging that he had been subjected to a detriment under the Equality Act on the grounds of his race. The Tribunal agreed with him – but it awarded him no compensation because it found that the alleged detriment was untrue and the Claimant had made it up!

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11 February 2016 0 Comments Posted in News

Be mindful of new minimum wage laws

Posted by , Partner

Charities are being reminded that new National Living Wage laws are set to take effect from April 1st. The changes to the statutory wage floor were announced by the Chancellor, George Osborne, in his Budget Speech last summer.

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27 January 2016 0 Comments Posted in Employment, Opinion

Disability Discrimination – Reasonable Adjustments Made Easier

Posted by , Partner

In a recent judgment, the Court of Appeal has eased the path of employees in showing that a duty to make reasonable adjustments arises where a provision, criterion or practice (a PCP) puts a disabled person at a substantial disadvantage compared to a non-disabled person. The employee appealed against the decision of the Employment Appeal Tribunal (EAT) that there had been no breach of the duty to make reasonable adjustments for her disability under the Equality Act. While the appeal ultimately failed, the judgment now makes demonstrating that the duty arises much easier for potential claimants.

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