On appeal, the High Court has held that the suspension of a teacher accused of having used unreasonable force against children, purportedly to allow for an investigation to be conducted fairly, constituted a repudiatory breach of contract, entitling the teacher to resign and treat herself as constructively dismissed. The school did not ask the teacher for a response to the allegations or consider any alternatives to suspension before deciding to suspend, and nor did it explain why a fair investigation would be prejudiced if the teacher remained at work. Background A term of mutual trust and confidence is implied into all employment contracts. Suspension is not a neutral act (Mezey v South West London and St George’s Mental Health NHS Trust [2010] EWCA Civ 293). Prior to suspending an employee, – Read More…
Employment Appeal Tribunal decide voluntary overtime counts towards holiday pay if sufficiently regular
The EAT has further clarified the law on holiday pay and held that voluntary overtime pay, out-of-hours standby payments and call-out payments should be included in pay for the four weeks’ leave under regulation 13 of the Working Time Regulations 1998. This was so even though there was no obligation for workers to accept the offer of overtime, or to participate in the on-call rota. The EAT held that the overarching principle of the EU case law is that holiday pay must correspond to normal remuneration. Elements of pay that are sufficiently regular or recurring to qualify as “normal” must be included. Payments for voluntary work which is normally undertaken should not be excluded as a matter of principle. The EAT further held that mileage allowances ought to form part – Read More…
Employment tribunal and EAT fees declared unlawful by the Supreme Court
In judicial review proceedings brought by Unison, the Supreme Court has unanimously declared that employment tribunal and EAT fees are unlawful, under both domestic and EU Law, and has quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893), on the basis that it prevents access to justice. The court also found that the Fees Order was indirectly discriminatory under section 19 of the Equality Act 2010. The effect of this momentous decision is that all fees paid since 29 July 2013 must be reimbursed by the government, and fees are no longer payable for future claims. In an expansive judgment, the court focused on the common law right of access to justice, which can be traced back to the Magna Carta. The court rejected the – Read More…
Acas publishes its Taylor review submission and further discussion paper
Acas has published its response to Matthew Taylor’s review on modern employment practices. The response analysed a number of calls to the Acas helpline which confirmed that workers in atypical employment (including zero and minimum hours workers, agency workers and self-employed workers) were concerned about their lack of job security and afforded employment rights under the law. Speaking on the helpline results, Acas Chair, Sir Brendan Barber said: “Our helpline analysis revealed that many callers were in a zero hours, agency or self-employed arrangement out of necessity rather than by choice with some people feeling taken advantage of and unfairly excluded from employment rights”. Acas has also published a discussion paper Ain’t that typical? Everyday challenges for an atypical workforce alongside its response to the Taylor review. The discussion paper – Read More…
The Doctors Laboratory admits couriers are “workers” and not self-employed contractors
The Doctors Laboratory (TDL), a company which provides pathology services to the NHS, has admitted that it had unlawfully classified its staff as independent contractors as opposed to workers. This admission by TDL was made in response to a claim brought by the Independent Workers’ Union of Great Britain (IWGB) on behalf of five of its members in March. This is the latest example of a company operating in the gig economy admitting to unlawfully classifying its workers as independent contractors. However, the IWGB is continuing with its claim because it is arguing that staff are not only workers but employees. The case is expected to be heard at the Central Employment Tribunal on the 13 and 16 November 2017. The IWGB is expected to launch a separate claim against – Read More…
Department for Education becomes first government department to publish gender pay gap data
The Department for Education (DfE) has become the first government department to publish its gender pay gap and bonus pay gap data. According to the figures, the DfE has a 5.3% mean pay gap (the difference between the average salaries for men and women) and a 5.9% median pay gap. The figures are substantially lower than the UK national gender pay gap of 18.1%. The DfE has also reported a mean bonus pay gap of 0.8% and a 0.0% median bonus pay gap. Following the introduction of mandatory gender pay gap reporting for companies with 250 or more employees, all government departments are expected to release gender pay gap data by the end of April 2018. Speaking on the DfE figures, Secretary of State for Education and Minister for Women – Read More…
Queen’s Speech 2017: employment law implications
On 21 June 2017, the Queen’s Speech set out details of legislation that the government intends to carry over into, or introduce in, the 2017-19 Parliamentary session. Key points of interest for employment practitioners are: National living wage. The national living wage (NLW) will increase to 60% of median earnings by 2020. After 2020, the NLW will continue to rise in line with average earnings. Immigration. The Immigration Bill, covering the whole of the UK, will establish a new national policy on immigration, including new powers concerning the immigration status of European Economic Area (EEA) nationals. The Bill will allow the government to repeal EU law on immigration, primarily free movement, which otherwise would have been saved and converted into UK law by the Repeal Bill. The migration of EU – Read More…
Male employee succeeds in direct sex discrimination claim for failure to pay enhanced shared parental pay
Background Direct sex discrimination Direct sex discrimination occurs where, because of sex, a person (A) treats another (B) less favourably than A treats or would treat others (section 13(1), Equality Act 2010 (EqA 2010)). In determining whether a man has been discriminated against because of sex, no account is taken of special treatment afforded to women in connection with pregnancy or childbirth (section 13(6)(b), EqA 2010). Therefore a man cannot claim that he has suffered sex discrimination because he has not been accorded the same special treatment. However, the EAT has held that this does not allow for blanket special treatment (Eversheds Legal Services Ltd v De Belin [2011] IRLR 448). Rather, pregnant employees and those on maternity leave should only be treated more favourably than male colleagues to the – Read More…
Employment tribunal quarterly statistics January to March 2017
On 8 June 2017, the Ministry of Justice published quarterly statistics for all tribunals, including the employment tribunal (ET), for the period January to March 2017. Key findings include: The number of single ET claims increased by 4%. The total number of multiple claims increased by 7%, however, the number of individual multiple claim cases actually fell by 23%. The number of single ET claims disposed of fell by 5%, leading to a 10% increase in the caseload of single cases outstanding. The number of multiple claims disposed of fell by 19%. The average time until disposal was 29 weeks for single claims (an increase of one week) and 206 weeks for multiple claims (an increase of 20 weeks). 28% of claims disposed of were conciliated by Acas, 11% were – Read More…
Employer’s belief that a disclosure was not protected is irrelevant (Court of Appeal)
Facts Croydon University Hospital NHS Trust (the Trust) employed Dr Beatt as a consultant cardiologist, for seven years. There were strained working relationships between Dr Beatt and a number of his colleagues; the cardiology department once being described as dysfunctional. In June 2011 a patient tragically died. Dr Beatt subsequently made a number of claims relating to staffing levels and experience, as well as patient safety. The Trust considered that his claims were unsubstantiated and unproven, noting that he had (allegedly) failed to provide any examples to back up his claims, despite requests to do so. It was further alleged, amongst other things, that some of his claims had been made as part of a campaign against a colleague and that his claims were vexatious and calculated to hamper the – Read More…