21 December 2011

Opt-out agreements

In Arriva London South Ltd v Nicolaou [EAT/0293/11], Mr Nicolaou was a bus driver who worked an average of 38 hours per week. His employer introduced a policy that it would not offer any overtime to a bus driver unless they signed an opt-out agreement.

Mr Nicolaou claimed that he had been subjected to a detriment because he had not signed an opt-out agreement. The EAT disagreed.

The reason why Mr Nicolaou was not offered any overtime was in order to implement a policy. The policy complied with reg. 4(2) of the Working Time Regulations (WTR) – because it was a reasonable step to ensure - that Mr Nicolaou did not work more than an average of 48 hours per week.

Comment

Was a blanket ban on overtime a reasonable step under reg. 4(2) of the WTR? Mr Nicolaou worked an average of 38 hours per week. Therefore, the employer could have complied with reg. 4(2) of the WTR by allowing Mr Nicolaou to work an average of 10 overtime hours per week.

19 December 2011

Tribunal awards will increase from 1 February 2012

From 1 February 2012, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2011.

The main increases are:
  • The maximum amount of a week’s pay will increase from £400 to £430.
  • The maximum compensatory award for unfair dismissal will increase from £68,400 to £72,300.
  • The daily limit on a guarantee payment will increase from £22.20 to £23.50.

14 December 2011

What can a worker claim for a breach of a contractual disciplinary procedure?

The Supreme Court has ruled that a worker cannot claim damages for their employer’s failure to follow a contractual disciplinary procedure [CDP] – if the worker's loss was a result of their dismissal.

However, a worker can make such a claim - if their loss was a result of their employer’s conduct before the dismissal – and the conduct did not form a part of the dismissal process.

Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Ministry of Defence [2011] UKSC 58

Comment

Although a breach of contract claim in relation to a CDP will only succeed if the claim falls outside of the "Johnson exclusion area" [see para. 50] - a disciplinary procedure should clearly state that it is non-contractual – in order to avoid such claims.

TUPE

An employee’s dismissal by an administrator was automatically unfair – because it was connected with a TUPE transfer - although the transfer had not been contemplated - or a transferee had not been identified - at the date of the dismissal.

The Court of Appeal approved the EAT’s decisions in the Harrison Bowden and Morris cases. And it disapproved the EAT’s decision in the Ibex case [see para. 49].

Spaceright Europe Ltd v Baillavoine [2011] EWCA Civ 1565

12 December 2011

Statutory payment rates for 2012/13

The statutory payment rates for 2012/13 are as follows.

  • The weekly rate of Statutory Sick Pay (SSP) is £85.85.
  • The weekly rate of Statutory Maternity Pay (SMP) is 90% of the employee's average weekly earnings for the first six weeks - followed by the lower of 90% of average weekly earnings or £135.45 per week for the remaining weeks of the maternity pay period.
  • The weekly rate of Statutory Paternity Pay (SPP), Additional Statutory Paternity Pay (ASPP) or Statutory Adoption Pay (SAP) is the lower of 90% of the employee's average weekly earnings or £135.45 per week.
  • The payment of SSP, SMP, SPP, ASPP or SAP is subject to the employee's average earnings being at least £107.00 per week.
Source: Department for Work and Pensions

7 December 2011

Offshore worker must take their holidays during a field break

Mr Russell was an offshore worker in the oil and gas industry. He was employed under a contract for the whole of each year. During the year, Mr Russell worked for 26 weeks and he would be onshore for the remaining 26 weeks. The periods that he spent onshore were known as field breaks. He would have a two-week field break after he had worked for two weeks.

During a field break, Mr Russell was free from any work-related obligations.

Mr Russell argued that he could to take his statutory holidays during a period that he was scheduled to work.

The Supreme Court disagreed. The Working Time Directive permitted an employer to ask its workers to take their holidays during a particular period, e.g. during a field break, annual shutdown or school holidays.

A pre-ordained rest period (e.g. a field break) – when a worker is free from any work-related obligations - could be counted towards their statutory holidays.

Russell v Transocean International Resources Ltd [2011] UKSC 57

Criminal Record Certificates

The Government’s response to the review of the criminal records regime is available at the Criminal Records Bureau. The Government has agreed to some of the review’s recommendations, e.g.
  • A person who is under 16 years is not eligible for a criminal record certificate (CRC).
  • A worker can re-use their CRC with different employers in the same sector - so they won’t need a new CRC when they take up a new role – if there’s no new relevant information.

2 December 2011

Discrimination due to being married to a work colleague

Discrimination laws provide that it is unlawful to discriminate against a worker because they are a civil partner or married.

In Dunn v Institute of Cemetery and Crematorium Management, the EAT held that a female worker could make a discrimination claim on the grounds of being married to a particular person (e.g. a work colleague).

However, a worker cannot make a discrimination claim on the grounds of their association with a married person [see para. 45 of the case transcript and para. 3.18 of the Code of Practice].