Employment Bulletin January 2015

Some of the main changes to employment law in 2015

There were several important developments in employment law in 2015. These are some of the most significant.

Travel time can be 'work time'

The European Court of Justice (ECJ) ruled that if employees don't have a fixed place of work then the time they spend travelling from home to their first job of the day should be classed as work time.

The same principle applies to the time spent travelling back home after the last job of the day.

The ruling affects all companies in the European Union including the UK because it is based on the EU Working Time Arrangement. Of course, the ruling does not affect employees who have a fixed workplace.

Employers may wish to review their pay structures to ensure they are not breaching working time regulations.

Shared parental leave

The new system of Shared Parental Leave (SPL) allowing mothers and fathers to share 52 weeks' leave came into effect on 5 April.

Under the SPL scheme, mothers are still required to take two weeks' compulsory leave immediately after the birth, but the other 50 weeks can be shared between both parents. The benefits are also available to couples who adopt a child.

Parents can choose whether to take their leave simultaneously or take turns, or a mixture of the two. The leave must be taken in complete weeks.

Parents can take their leave in a continuous period but would have to negotiate with their employer if they wish to take leave in discontinuous periods. The employer doesn't have to agree to a discontinuous leave period.

Ban on exclusive zero-hours contracts

The ban on exclusivity clauses in zero-hours contracts took effect on 26 May as part of the Small Business, Enterprise and Employment Act 2015.

The measure was introduced because some firms, including recruitment agencies, had been using exclusivity clauses to prevent an individual from working for another employer, even if the firm had nothing to offer them for long periods.

Human Resources and disciplinary procedures

A case before the Court of Appeal focussed attention on the role of Human Resources in disciplinary procedures.

An employee who was sacked for gross misconduct won his appeal against dismissal after claiming that the officer investigating his case had been unduly influenced by the HR department.

The Appeal Court held that an investigating officer was entitled to call for advice from a human resources department but the department had to be very careful to limit advice essentially to questions of law, procedure and process. It had to avoid straying into areas of culpability. The department had clearly involved itself in issues of blame, which was outside its remit.

Review of Employment Tribunal fees

The government began a review of Employment Tribunal fees, which have proved highly controversial since they were introduced in 2013.

The new system quickly led to an 80% fall in claims, although there is some evidence that the figures are now starting to rise again.

The review is assessing several issues including the reasons for the reduction in the number of claims and whether there has been a significant take-up of alternative dispute resolution services.

The review is still taking place. We shall keep clients informed of developments.

Council loses appeal over increase in employee's compensation

A council has lost its appeal against a tribunal decision to add an extra 10% to an employee's compensation for injury to feelings in a disability discrimination claim.

The case involved an employee who was dyslexic. He was able to work satisfactorily until the council transferred him to a new position, where he struggled. He was then dismissed for incapability.

The Employment Tribunal held that he had been unfairly dismissed because the council had failed to consider alternative employment. He had been subjected to disability discrimination because the council had failed to consider the reasonable adjustment of transferring him to another position.

The tribunal decided that the employee should be compensated for unfair dismissal by a basic award and a compensatory award. The tribunal also awarded the employee £4,000 for injury to feelings in respect of the discrimination. It then added an extra £400, increasing it by 10%

This was in line with a principle established recently by the Court of Appeal that damages for most infringements of rights should be increased by 10%.

The council argued that the Court of Appeal decision only applied to civil courts, not to employment tribunals.

The Employment Appeal Tribunal (EAT) ruled against the council, saying the ruling did apply to tribunals. It said that as the position of a litigant before an employment tribunal was now broadly similar to that which applied in the county court so far as funding a claim was concerned, there was no reason in principle why the level of damages should be different.

Doctor wasn't 'an employee and so wasn't unfairly dismissed'

An employment tribunal has rejected a doctor's unfair dismissal claim because it held that he did not come within the definition of being an 'employee or a worker'.

The case involved a doctor who worked for an NHS Trust dealing with out-of-hours calls. He was also a member of a co-operative that provided services on an ad hoc basis to a care centre at one of the trust's hospitals.

His agreement with the co-operative described him as self-employed contractor. He submitted invoices that were paid gross without any deductions for tax or National Insurance. The co-operative was not obliged to provide him with any shifts and he was not obliged to accept them when they were offered.

The doctor then brought various complaints against the trust and the co-operative including detrimental treatment, unfair dismissal and direct racial discrimination and victimisation.

The tribunal dismissed the claims on the basis that the doctor was not an employee under the Employment Rights Act 1996. The judge allowed him to appeal on whether or not he could be classed as a worker, which would offer him some legal protection and possibly allow him to bring his claim.

However, the Employment Appeal Tribunal dismissed his appeal, noting that his role for the co-operative was missing exclusivity because he was free to work or not as he chose and wherever he chose.