Newsletter April 2015


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

Election special - employee was 'too left wing'

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.)

Ability to rely on an employee's admissions

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.

Only reasonable efforts required to identify a disability

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.

Diet-controlled Type 2 diabetes was not a disability

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.)

Service provision changes under TUPE - multiple clients

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.)

Data subject access requests - High Court discretion

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.

Forced subject access requests

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.

National minimum wage: prospective rates from government response to Low Pay Commission's 2015 report

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

The information and any commentary contained in this newsletter are for general information purposes only and do not constitute legal or any other type of professional advice. Darryl Evans and Evans Employment Law Limited do not accept any and, to the extent permitted by law, exclude all, liability to any person for any loss which may arise from relying upon or otherwise using the information contained in this newsletter. If you have a particular query or issue you are strongly advised to obtain specific, personal advice and not to rely on the information or comments in this newsletter.

If you prefer not to receive future editions of this newsletter, please send an email to with the message ‘Unsubscribe’.