May Employment Law Update
“Lots of people go mad in January. Not as many as in May, of course.”
(Karen Joy Fowler, Sarah Canary)
Hopefully you have kept your sanity in May despite the pressures of work and life generally, whether a business or an individual. If you have, then you will be able to catch up on this brief summary of the latest changes in the ever changing minefield that is UK employment law.
1 May 2014 reminder: deadline for TUPE employee liability information notification increases to 28 days
The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (SI 2014/16) came into force on 31 January 2014. The regulations make a number of amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE).
One such amendment is to the timeframe for providing employee liability information.
Regulation 11(6)(a) of TUPE has been amended so that the deadline for notification of employee liability information to the transferee is increased, from 14 days to 28 days. This amendment only applies to transfers that take place on or after 1 May 2014.
Early conciliation mandatory from 6 May
Early conciliation becomes mandatory for most types of employment tribunal claims from 6 May 2014. It will make important changes to how limitation dates are calculated and how claims should be presented.
For further information go to the ACAS website http://www.acas.org.uk/index.aspx?articleid=4028
Employment Law cases round up
Court grants order for imaging and inspection of ex-employees’ computers
The High Court has ordered that an employer may instruct an independent computer expert to inspect and take images from the personal computers of two former employees. The employer was granted the mandatory injunction after information came to light which suggested that the individuals had misused confidential information belonging to the employer during their employment.
The court took into account the fact that it had a high degree of assurance about the strength of the employer’s claim, and that the employer had taken years and used significant resources to create the confidential information at the heart of the proceedings.
(Warm Zones v Thurley and another  EWHC 988 (QB).)
Receiving pay was not a prerequisite for employment status
The EAT has held that an individual can still be considered an “employee” for the purposes of the Employment Rights Act 1996 even if they have not exercised their right to be paid.
The individual, the Managing Director and sole shareholder of a company, remained entitled to a redundancy payment from the Insolvency Service under section 166 of ERA 1996, despite not receiving pay for two years. She had elected to forgo her salary in an attempt to keep the company afloat.
(Secretary of State for Business, Innovation and Skills v Knight UKEAT/0073/13.)
Statutory holiday pay should include a sum in respect of commission
The ECJ has held that, where a worker’s remuneration includes contractual commission, determined with reference to sales achieved, the Working Time Directive precludes a national law that calculates statutory holiday pay based on basic salary alone.
If commission payments are not taken into account, the worker will be placed at a financial disadvantage when taking statutory annual leave as no commission will be generated during the holiday period. In such circumstances, the worker might be deterred from exercising the right to annual leave. This would be contrary to the directive’s purpose.
This case was referred to the ECJ by the Leicester employment tribunal. The tribunal recognised that, under the natural wording of the Working Time Regulations 1998 and the week’s pay provisions of the Employment Rights Act 1996, the claimant was not entitled to a sum in respect of commission in his holiday pay. The case is now likely to return to the tribunal to consider whether the domestic legislation can be interpreted in line with the ECJ’s decision and, if it can, the level of holiday pay to which the claimant was entitled.
(Lock v British Gas Trading Ltd C-539/12.)
LLP member was “clearly” a worker and entitled to whistleblower protection
The Supreme Court has held that a former equity partner of a law firm incorporated as a limited liability partnership (LLP) was clearly a worker and therefore eligible to bring a whistleblowing claim against the LLP.
Overturning the decision of the Court of Appeal, the court found that the LLP member fell within the definition of worker in section 230(3) of the Employment Rights Act 1996, as she could not market her services as a solicitor to anyone other than the LLP and was an integral part of its business.
It was not necessary for there to be an element of subordination in order for worker status to be made out. While subordination may sometimes be an aid to distinguishing workers from other self-employed individuals, it is not a universal characteristic of being a worker.
The court also shed some light on the meaning of section 4(4) of the Limited Liability Partnerships Act 2000, which has been notoriously difficult to interpret. It does not mean (as the Court of Appeal found) that LLP members can only be workers if they would also have been workers had the LLP been a traditional partnership under the Partnership Act 1890.
The Supreme Court’s decision is significant as it means that LLP members will benefit not only from the statutory protection from detriment available to whistleblowers, but also from a range of other rights available to workers. These include the right to paid annual leave and the right to be auto-enrolled in a pension scheme.
(Clyde & Co LLP and another v Bates van Winkelhof  UKSC 32.)
Source: The Practical Law Company
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