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In a quiet month, the rumbling issue of how to calculate holiday pay remains
the headline. The European Court (ECJ) started this ball rolling with its
decision in the Lock v British Gas case, requiring holiday pay to include an
allowance for commission. Once the ECJ has giving its ruling in a case it
is remitted back to an Employment Tribunal to decide on the facts in light
of that ruling.
So the employment law world has waited expectantly for the Tribunal to
decide Lock. Which it now has: by following the ECJ ruling and saying that
Mr Lock should be awarded additional holiday pay for foregone commission.
This applies only to the core EU law based entitlement of four weeks.
Beyond that, though, the Tribunal has settled nothing, including the vexed
issue of the reference period over which the added commission pay needs to
be calculated. We await a further Tribunal hearing (and probably appeals)
in Lock, as well as decisions in other related cases.
This is therefore no more than a news update. For some more enlightening
developments, read on.
Darryl Evans
T: +44 (0)7771 725341
E: dfe@evansemployment.co.uk
In the spirit of topicality, let me start with a case regarding
discrimination on the grounds of religion or belief.
In the course of a heated conversation a representative of the GMB union
accused Mr Henderson, an employee of the union, of writing a letter which
was 'too left-wing'. Following his dismissal Mr Henderson claimed not only
that he had been unfairly dismissed (a claim he lost) but that he had
suffered direct discrimination and harassment related to belief, on account
of his 'left-wing democratic socialist beliefs'.
The Employment Appeals Tribunal (EAT) found against Mr Henderson. It
considered the extent to which the union was aware that Mr Henderson was
manifesting a protected belief, given that it was the union's reasons for
treating him as it did which was important, not Mr Henderson's aim in
writing the letter. The overall context and seriousness were also important,
particularly in the case of a single incident. Overall, there was no
discrimination or harassment here. (The General Municipal and Boilermakers
Union v Henderson UKEAT/0073/14.)
Employer's will be heartened by the approach the EAT in CRO Ports London Ltd
v Wiltshire (UKEAT/0344/14).
CRO relied on admissions made by the employee during its investigation and
at the disciplinary hearing to limit the scope of its misconduct
investigation. In deciding in favour of the employee, the Tribunal drew
conclusions about what would have been discovered had the employer
undertaken further investigation. The EAT corrected this approach: the
Tribunal had failed to appreciate the significance of the admissions made by
the employee at the time and should instead have asked whether the employer
acted within the range of reasonable responses in limiting the scope of its
investigation. The case was remitted back to the Tribunal for
reconsideration.
An employer which took reasonable steps, but not every step possible, to
ascertain whether an employee was disabled did enough to avoid having
constructive knowledge of a disability. So said the EAT in Donelien v
Liberata UK Ltd UKEAT/0297/14.
Liberata concluded that its employee was not disabled, having taken several
steps to determine whether he was or not. These included relying on a flawed
occupational health report, the discrepancies in which warranted further
investigation. Overall, though, the employer had taken sufficient steps.
In a second significant disability discrimination case this month, the EAT
found that an employee with Type 2 diabetes was not disabled.
To control his condition the employee followed a diabetic diet designed to
avoid sugary foods such as fizzy drinks. The EAT concluded that the
condition did not have a substantial adverse effect on the employee's
ability to carry out day-to-day activities. In addition, a diabetic diet
does not, in the EAT's view, qualify as a measure taken to treat or correct
the condition. (Metroline Travel Ltd v Stoute UKEAT/0302/14.)
Mr Duncan was employed by a company called Chainbow Limited as a site
maintenance manager at an estate comprising many separate blocks of
residential housing. Each block had its own separate residents' management
company, each of which contracted with Chainbow for the management services.
There was also a separate contract with another company related to the
management of the common parts of the estate.
Over time, Chainbow lost some of these management contracts to other
contractors. Later, it sub-contracted its remaining contracts to Ottimo
Property Services Limited. Mr Duncan transferred along with these contracts
to OPS and continued working from the same office on the estate. These
contracts were then acquired by a further company, Warwick Estate Properties
Limited, which refused to employ Mr Duncan on the grounds that TUPE did not
apply. OPS therefore dismissed Mr Duncan who claimed that his employment had
transferred to WEP under TUPE.
The unusual issue raised here was whether a number of contracts with
different clients could be aggregated to form one overall service provision
change. The Tribunal thought not, as TUPE speaks in terms of providing
services to 'a client' and 'the client', meaning only a single client was
envisaged.
The EAT disagreed. There was no need to restrict the interpretation of
'client' to the singular. A service provision change could involve a
contract for the provision of services to a group of persons collectively
defined as 'the client' under that contract, as long as that group has a
common intention regarding the manner in which the activities are to be
carried out. The same can be the case even if there are separate contracts
for each client, albeit that it will likely be harder to demonstrate the
necessary common intention where there is no umbrella contract in place.
(Ottimo Property Services Limited v Duncan and anor UKEAT/0321/14.)
Although not an employment case, the manner in which the High Court
exercised its discretion in relation to a data subject access request in
Kololo v Commissioner of Police of the Metropolis (2015 EWCH 600 (QB)) is
worth flagging.
Mr Kololo was appealing his conviction and death sentence in Kenya for
robbery with violence and the kidnapping of two British nationals. Lawyers
made data subject access requests on his behalf to the Home Office, the
Foreign and Commonwealth Office and the Metropolitan Police Service. The MPS
refused to disclose the information on the grounds that it was an improper
attempt to use the Data Protection Act 1998 (DPA) to circumvent the
provisions of the Crime (International Co-Operation) Act 2003 (CICA) and an
abuse of process.
The Court's discretion to order compliance with a data subject access is
'general and untrammelled', but it should also be exercised to give effect
to the Data Protection Act and be proportionate. The Court considered that
the primary purpose in making the request was to assist with Mr Kololo's
case but, for the information to be of any assistance, he would want to
correct any inaccuracies. The request accorded with the DPA and, as Mr
Kololo has been sentenced to death, ordering disclosure was proportionate.
The 2003 case of Durant v FSA made clear that the right of access enables
individuals to check their data is being processed lawfully but it is not a
right to all information and it is not intended for discovery purposes with
a view to litigation. In exercising its discretion, however, the Court can
consider the motive behind a request.
It is now a criminal offence for employers to force job applicants and
employees to obtain and then provide a copy of their criminal record by
means of a subject access request under the Data Protection Act 1998 (DPA).
The offence was in section 56 of the Act but has only now been brought into
force, despite the practice having been discouraged for some time by the
Information Commissioner.
The Low Pay Commissions recommended rates for NMW are set out below. The
Government accepted all of the recommendations, meaning they will come into
effect from 1 October 2015, apart from the apprenticeship rate. The election
of a new Government could result in variances of course.
- Adult rate: up 3% to £6.70 an hour
- Apprenticeship rate: up to £3.30 an hour (rather than to the
recommended £2.80 an hour)
- Young workers rate: up 2.2% to £3.87 an hour
- Youth development rate: up 3.3% to £5.30 an hour
- Accommodation offset limit increased by 27p to £5.35
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