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Employment law update

08 Jul 2019

Case highlights from 2019 so far!

  • Dudley Metropolitan Borough Council v Willetts: it was heldthat holiday pay under the Working Time Directive must include regular voluntary overtime. It will be for tribunals to determine, on a case-by-case basis, whether a particular pattern of voluntary overtime is sufficiently regular and settled in order to be taken into account.
  • In Baldeh v Churches Housing Association of Dudley and District Ltd: it was held where an employer did not know about the claimant’s disability (depression) at the time of dismissal but was told about it at the appeal hearing, the dismissal could still be discriminatory under the Equality Act 2010. An appeal is an integral part of the decision to dismiss.
  • Capita Customer Management Limited v Ali/Hextall v Chief Constable of Leicestershire Police: The Court of Appeal concluded in both cases that an employer’s failure to pay male employees enhanced shared parental pay was not sex discrimination or a breach of the equal pay legislation – even though their female employees were entitled to enhanced maternity pay.
  • Garamukanwa v United Kingdom: the European Court of Human Rights confirmed that an employee’s right to privacy under Article 8 of the European Convention on Human Rights was not breached when, for the purposes of disciplinary proceedings, the employer relied on material found on the employee’s phone during a police investigation into allegations of harassment against the employee by a colleague.
  • In Chief Constable of Norfolk v Coffey: a police officer wasn’t allowed to transfer to a different force due to incorrect and stereotypical assumptions that had been made about the extent and implications of her hearing loss. The Court of Appeal confirmed that perceived disabilitydiscrimination claims can be brought.

Note cases are fact specific and advice should still be sought.

Sarah Furness

What is on the horizon?

  • BREXIT! – This obviously remains a huge unknown, but what might change in the event of a no-deal?
    • All parties and potential leaders have pledged to protect workers’ rights so it’s unlikely anything will change there.
    • There could be some amendments to TUPE, perhaps to relax the rules on consultation and maybe make it easier to harmonise terms following a transfer.
    • Some commentators suspect the 48 hour week will be abolished – we’re the only country in the EU that has an opt-out and hardly anyone sticks to it….
    • Holiday pay – there have been some suggestions that the government may reset recent holiday pay cases in respect of what constitutes a ‘weeks’ pay’ and return it to basic salary
  • The Good Work Plan – please see Tom’s article that sets out the key changes being introduced in April 2020 as a result of the Taylor Review.
  • Royal Mencap Society v Tomlinson-Blake – the Supreme Court will consider whether ‘sleep-in’ workers who sleep at their employer’s premises are entitled to be paid the national minimum wage for all hours spent sleeping.

For more information on any of the above, or how we can help you or your business, please contact our Employment Team, or call 0191 232 8345.