Should commission be included in a salesman’s holiday pay?

British Gas employed Mr Lock as a salesman. Mr Lock’s monthly pay consisted of his basic pay and a variable sales commission (SC). Mr Lock only received his basic pay for a period during which he had taken holidays - since he would not have earned a SC during the period.

Mr Lock argued that his holiday pay should include an average SC. The Advocate General (AG) agreed. The AG said that the SC was intrinsically linked to the performance of the salesman’s job duties [see paras. 31 – 34]. The AG added that Mr Lock’s average SC over the last 12 months appeared to be an appropriate amount that should be included in his holiday pay [see para. 48].

The decision of the ECJ is awaited. The ECJ usually agrees with the opinion of the AG.

Lock v British Gas (C-539/12)

Surrogacy

In CD v ST (C-167/12), the Advocate General (AG) ruled that EU maternity laws applied to a woman who had a baby through a surrogate - regardless of whether or not the woman breastfeed the baby. Therefore, the woman is entitled to at least two weeks’ maternity leave and the remainder of the maternity leave not taken by the surrogate.

However, in Z v A Government Department and the Board of Management of a Community School (C-363/12), the AG disagreed [paras. 48 – 52] and ruled that the woman is not entitled to maternity leave. The AG added that the employer’s refusal to grant maternity leave to the woman was not unlawful disability discrimination – because her inability to carry a pregnancy was not a disability that prevented her from having a professional life.

In both cases, the Advocate Generals ruled that the employers’ refusal to grant maternity leave to the women was not unlawful sex discrimination.

The decision of the ECJ is awaited.

In February 2013, the Government proposed to extend statutory adoption leave and pay: and shared parental leave to a parent who had a baby through a surrogate – if the parent satisfies the criteria relating to parental orders under the Human Embryology and Fertilisation Act 2008.

TUPE and Collective Agreements

The ECJ has ruled that a private-sector transferee is not legally obliged to comply with a change (e.g. a pay increase) made to the terms of employees transferred from the public sector – if the change was agreed by a public-sector negotiating body - after the TUPE transfer had taken place – and it was not possible for the transferee to participate in the negotiations.

Source: Alemo-Herron v Parkwood Leisure Ltd (C-426/11).

Follow Tony Trotman on Twitter for more employment law updates, e.g. new employment status of employee shareholders coming into force on 1 September 2013.

What is a protected conviction/caution?

If an employer asks a job applicant about their criminal record – the job applicant must disclose any spent convictions/cautions if they are applying for a certain job (e.g. a nurse). However, from 29 May 2013, a job applicant will not be required to disclose a protected conviction/caution. Hence, a job application form should notify a job applicant that they are not required to disclose a protected conviction/caution.

Protected conviction

A protected conviction is a conviction where:

• Five years and six months or more have passed since the date of the conviction if the job applicant was under 18 years at the time of the conviction, or
• 11 years or more have passed since the date of the conviction if the job applicant was 18 years or over at the time of the conviction, and
• The job applicant was not convicted for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).
• The job applicant did not serve a custodial sentence or sentence of service detention in respect of the conviction.
• The job applicant has not been convicted of any other offence at any time.

Protected caution

A protected caution is a caution where:

• Two years or more have passed since the date on which the caution was given if the job applicant was under 18 years at the time the caution was given, or
• Six years or more have passed since the date on which the caution was given if the job applicant was 18 years or over at the time the caution was given, and
• The caution was not given for an offence listed in art. 2A(5) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (e.g. cruelty to children).

Source: Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 [SI 2013/1198].

Comment

The amendments to the the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 is the Government's response to the Court of Appeal's judgment in T v Chief Constable of Greater Manchester [2013] EWCA Civ 15.

On 27 March 2013, the Disclosure and Barring Service announced that a Criminal Record Certificate will not disclose a protected conviction/caution.

Pay protection for trainee doctors

A part-time doctor who moved to a full-time training post in a lower grade was entitled to be paid at the full-time equivalent of their pay in their previous post: Barts and the London NHS Trust v Verma [2013] UKSC 20.

 

Collective redundancies consultation

The following changes will apply to an employer who has proposed to make collective redundancies on or after 6 April 2013.

Minimum period: In a case of 100 or more redundancies - the requirement for a minimum period of 90 days between the start of the consultation and the first dismissal will be reduced to 45 days. Please note section 7 (How long should consultation last?) of the ACAS guide on collective redundancies.

Notifying the Government about collective redundancies: In a case of 100 or more redundancies - an employer must notify the Government about the redundancies at least 45 days before the first dismissal takes effect. The employer may use a HR1 Form to notify the Government about the redundancies.

Fixed-term employees: A fixed-term employee must be included in collective redundancies consultation - if they are being made redundant before their contract has expired. This will apply to a case of 20 or more redundancies.

ACAS guide: The ACAS has published a new guide on collective redundancies.

Source: Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 [SI 2013/763].

TUPE and Collective Agreements

The Advocate General (AG) has stated that it is possible under EU law - for a private-sector transferee to be legally obliged to comply with a change (e.g. a pay increase) made to the terms of employees transferred from the public sector - even though the change was agreed by a public-sector negotiating body - after the TUPE transfer had taken place.

The AG added that a national court should determine whether the legal obligation would breach the employer's right to conduct a business under Art. 16 of the Charter of Fundamental Rights of the European Union.

Source: Alemo-Herron v Parkwood Leisure Ltd (C-426/11).

Comment

If the ECJ agrees with the AG's opinion - it is likely that the Government will limit the period during which a transferee must comply with a term derived from a collective agreement to one year - after the TUPE transfer: Art 3(3) of the TUPE Directive.  

Parental leave goes up from 13 to 18 weeks

From 8 March 2013, an employee’s entitlement to parental leave for a child will increase from 13 weeks to 18 weeks. And an agency worker who is returning from parental leave will have the right to request flexible working: The Parental Leave (EU Directive) Regulations 2013.