The cap on “a week’s pay” (currently £380) does not apply to compensatory awards for a breaching TUPE information and consultation obligations: Zaman v Kozee Sleep Products Ltd (t/a Dorlux Beds UK) [EAT/0312/10].
Opt-out Agreements
In Arriva South London Ltd v Nicolau [EAT/0280/10], the EAT remitted the following question to the employment tribunal.
Where a worker did not sign an opt-out agreement – did their employer take reasonable steps to ensure that they did not work more than 48 hours per week – if it did not allow them to work for any amount of overtime?
Prudent HR decisions are based on up-to-date information. Trotman's Employment Law Alerts (TELA) was an email news service that quickly informed HR professionals about the latest employment law developments. This is proven by the publication dates of the news items shown below. TELA provided accurate; concise; in-depth; and practical coverage of topical employment law developments. See @tonytrotman on X (formerly known as Twitter) for the latest employment law developments.
30 December 2010
2 December 2010
Positive action law will come into force in April 2011
From 6 April 2011 - an employer can appoint or promote a person from an under-represented group if the job applicants are equally qualified: Equality Act 2010 (Commencement No. 5) Order 2011 [SI 2011/96].
On 12 January 2011, the Government Equalities Office published a guide for employers about postive action.
Gender pay reports
The Government will adopt a voluntary approach towards the publication of gender pay reports (GPR) by employers in the private and voluntary sectors. Each year, the Government will review the number of employers that are publishing GPR and the quality of those reports - to assess whether an alternative approach is required – e.g. a mandatory approach via s. 78 of the Equality Act 2010.
Source: Government Equalities Office
On 12 January 2011, the Government Equalities Office published a guide for employers about postive action.
Gender pay reports
The Government will adopt a voluntary approach towards the publication of gender pay reports (GPR) by employers in the private and voluntary sectors. Each year, the Government will review the number of employers that are publishing GPR and the quality of those reports - to assess whether an alternative approach is required – e.g. a mandatory approach via s. 78 of the Equality Act 2010.
Source: Government Equalities Office
1 December 2010
National Minimum Wage
Where a worker is provided with sleeping accommodation at the workplace – while they are on-call - the worker is entitled to be paid the national minimum wage (NMW) for the hours they are awake for the purpose of working: South Manchester Abbeyfield Society Ltd v Hopkins [EAT/0079/10].
However, a worker (e.g. a night-watchman) who is working by being present at the workplace - is entitled to be paid the NMW for the total hours of the nightshift - regardless of whether or not they are provided with sleeping accommodation.
Comment: The Hopkins case is good NMW news for employers in sectors where on-call arrangements are common, e.g. the residential care sector.
However, a worker (e.g. a night-watchman) who is working by being present at the workplace - is entitled to be paid the NMW for the total hours of the nightshift - regardless of whether or not they are provided with sleeping accommodation.
Comment: The Hopkins case is good NMW news for employers in sectors where on-call arrangements are common, e.g. the residential care sector.
29 November 2010
Re-hiring a disabled person
It is a reasonable adjustment to re-hire a disabled person - after their resignation – without the need for them to re-apply for employment: Hinsley v Chief Constable of West Mercia Constabulary [EAT/0200/10].
Also see Retiring and Re-hiring a Disabled Worker Could be a Reasonable Adjustment.
Also see Retiring and Re-hiring a Disabled Worker Could be a Reasonable Adjustment.
24 November 2010
Extra bank holiday for royal wedding
The Government has announced that there will be an extra bank holiday on 29 April 2011 to celebrate the the marriage of Prince William and Catherine Middleton .
Comment
Whether an employee is entitled to a paid bank holiday on 29 April 2011 will depend on the terms of their contract.
If the contract indicates that the employee is entitled to:
Pay and benefits for NHS staff (except doctors) in relation to the royal wedding will be determined at local level. Source: NHS employers.
Related legislation
Comment
Whether an employee is entitled to a paid bank holiday on 29 April 2011 will depend on the terms of their contract.
If the contract indicates that the employee is entitled to:
- The normal eight bank/public holidays (in England and Wales) - the employee will not be entitled to a paid bank holiday on 29 April 2011. Could the employee argue that they are entitled to the extra bank holiday via custom and practice? For example, they received paid leave for the extra bank holidays to celebrate the Millennium and the Queen's Golden Jubilee.
- Paid leave on any bank/public holiday - the employee will be entitled to a paid bank holiday on 29 April 2011.
Pay and benefits for NHS staff (except doctors) in relation to the royal wedding will be determined at local level. Source: NHS employers.
Related legislation
12 November 2010
Age discrimination was justified
In Woodcock v Cumbria Primary Care Trust [EAT/0489/09], Mr Woodcock was entitled to an enhanced retirement pension (ERP) on his 50th birthday. The cost of providing an ERP to Mr Woodcock was considerably higher than the cost of making him redundant.
Cumbria Primary Care Trust (CPCT) gave a redundancy dismissal notice (RDN) to Mr Woodcock - before the first consultation meeting had taken place – to ensure that the notice expired before his 50th birthday. The duration of the RDN was one year.
Mr Woodcock claimed that the timing of the RDN was due to his age - and therefore - he was a victim of unlawful age discrimination. The EAT disagreed.
The employment tribunal had found that the age discrimination had been justified on the grounds of cost and other factors. Mr Woodcock was at risk of redundancy when he was 48 years old. The chance that he would be employed by CPCT on his 50th birthday only arose – because he was employed for almost a year after his job had disappeared – followed by the one-year RDN.
Mr Woodcock had no legitimate expectation when his job disappeared – that he would be employed by CPCT on his 50th birthday – if he did not find any suitable alternative employment.
The EAT also expressed doubt as to whether para. 72 of Cross v British Airways [EAT/0572/04] correctly stated that discrimination could not be justified “solely on considerations of cost”.
Cumbria Primary Care Trust (CPCT) gave a redundancy dismissal notice (RDN) to Mr Woodcock - before the first consultation meeting had taken place – to ensure that the notice expired before his 50th birthday. The duration of the RDN was one year.
Mr Woodcock claimed that the timing of the RDN was due to his age - and therefore - he was a victim of unlawful age discrimination. The EAT disagreed.
The employment tribunal had found that the age discrimination had been justified on the grounds of cost and other factors. Mr Woodcock was at risk of redundancy when he was 48 years old. The chance that he would be employed by CPCT on his 50th birthday only arose – because he was employed for almost a year after his job had disappeared – followed by the one-year RDN.
Mr Woodcock had no legitimate expectation when his job disappeared – that he would be employed by CPCT on his 50th birthday – if he did not find any suitable alternative employment.
The EAT also expressed doubt as to whether para. 72 of Cross v British Airways [EAT/0572/04] correctly stated that discrimination could not be justified “solely on considerations of cost”.
11 November 2010
Serial tribunal claimant cannot make age discrimination claim
In Berry v Recruitment Revolution [EAT/0190/10], Recruitment Revolution (RR) advertised a “junior administrator” job on the behalf of a client. The job advertisement (JA) stated that the job would be suitable for a school leaver or someone who had recently taken “A” levels.
Mr Berry, a serial tribunal claimant, asked RR if he should apply for the job. He told RR that he was over the age of 50 and had passed his “A” levels a long time ago.
RR invited Mr Berry to apply for the job. RR said that the JA should have stated that school leavers and graduates would also be considered for the job. However, Mr Berry did not apply for the job but he made an age discrimination claim.
The EAT held that Mr Berry could not make such a claim based on the JA if he did not apply for the job.
The EAT said that [see para. 29]:
“the purpose of the [Age Discrimination] Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.”
Also see the serial litigants website.
Mr Berry, a serial tribunal claimant, asked RR if he should apply for the job. He told RR that he was over the age of 50 and had passed his “A” levels a long time ago.
RR invited Mr Berry to apply for the job. RR said that the JA should have stated that school leavers and graduates would also be considered for the job. However, Mr Berry did not apply for the job but he made an age discrimination claim.
The EAT held that Mr Berry could not make such a claim based on the JA if he did not apply for the job.
The EAT said that [see para. 29]:
“the purpose of the [Age Discrimination] Regulations is not to provide a source of income for persons who complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill, and that those who try to exploit the Regulations for financial gain in such circumstances are liable, as happened to the claimant in the Investigo case, to find themselves facing a liability for costs.”
Also see the serial litigants website.