March Employment Law Update

Hello readers, March have been a significant month for OSJ Law, as it celebrated its first year anniversary!

Here’s to the next year as an even better year for OSJ Law and all businesses and employment generally in the United Kingdom and beyond.

In terms of the March employment law update I have compiled a top 5 of my most significant and relevant employment law cases and legal changes to update readers of this blog. Enjoy this and the start of spring with new confidence in the economy and your knowledge of employment law.

The Top 5

1.    Flexi-time schemes and unlawful deductions from wages

Businesses that use flexi-time schemes should take note of a recent EAT judgment that an employee, who was not paid on termination of employment for over 1000 extra hours worked under a flexi-hours scheme, had not suffered an unlawful deduction from wages.

The EAT recognised that the poor drafting of the flexi-hours scheme was at the heart of the problem in this case. The scheme differentiated between those employees who were entitled to overtime payments and those who were not and did not address the issue of payment on termination of employment at all.

To avoid this type of dispute, businesses should ensure that the terms of flexi-hours schemes make it clear what will happen to accumulated hours on termination and should, ideally, make sure that employees manage their accrued hours to avoid a significant build-up.

Source: The Practical Law Company

2.    Covert recording of private discussions at disciplinary and grievance hearings admissible

The EAT has upheld an employment tribunal decision that covert recordings made by an employee of the public and private discussions of the panel at her grievance and disciplinary hearings could be admitted as evidence at a final hearing.

The EAT held that the private comments made by the panel were not part of their deliberations on the matters under consideration and the case could therefore be distinguished from its decision in Amwell View School Governors v Dogherty. The tribunal was entitled to decide that the recordings were admissible in evidence, the cogency and relevance of which could be determined by the tribunal at the final hearing. (Punjab National Bank (International) Ltd and others v Gosain UKEAT/0003/14.)

Source: The Practical Law Company

3.    Responses to zero hours contracts consultation

BIS has announced that the government’s consultation on zero hour’s contracts, which closed on 13 March 2014, attracted more than 30,000 responses. The consultation identified exclusivity clauses and a lack of transparency as two key concerns posed by zero hours contracts and asked for views on potential solutions.

Since the consultation closed, Acas and CIPD have published their full responses online. Acas has suggested that exclusivity clauses in zero hours contracts are likely to be detrimental to relations between employer and employee. It calls for new guidance on zero hours contracts, to ensure that employers and employees understand their working arrangements. However, CIPD has taken this a step further and recommended that the government bans exclusivity clauses in zero hours contacts unless employers can demonstrate a “compelling business reason” for their use.

Sources: The Practical Law Company

Zero hours contracts consultation closes with over 30,000 responses, BIS, 15 March 2014; Acas Council response to the Government’s consultation on zero-hours contracts, Acas, 18 March 2014, and Exclusivity clauses in zero hours contracts should be banned where there is no compelling business reason for their use, says CIPD, CIPD, 14 March 2014.

4.    TUPE service provision changes: “intends” means more than “hope and wish” that task will be short-term

The EAT has upheld an employment tribunal’s decision on the meaning of “intends” in the “task of short-term duration” exception to the TUPE service provision changes rules, for situations where a client buys in services from a contractor on a one-off basis.

For the exception to apply, a client must have more than a “hope and wish” that a particular event or task will be short-term. In this case, there had been a service provision change when a local authority transferred the home care provision for an individual with learning difficulties to a new provider on an ad hoc basis, pending an application to the Court of Protection to change the individual’s care plan, which would have removed the need for home care.

The EAT also found that an employee of the transferor, who had been suspended from her duties at the time of the service provision change and told that she was not able to return to her post caring for the individual, was not assigned to the organised grouping of employees. Therefore, she had not transferred to the transferee. (Robert Sage Ltd (t/a Prestige Nursing Care Ltd) v O’Connell and others UKEAT/0336/13.)

Source: The Practical Law Company

5.    Employment tribunal fees to increase in some cases from 6 April 2014

The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014 has been laid before parliament and will come into force on 6 April 2014. The main effect of the order from an employment law perspective is to re-classify the following claims as “Type B” claims attracting the higher fees (£250 issue fee and £950 hearing fee for a single claimant):

  • Equal pay.
  • Sex equality in pension schemes.
  • Failure to inform or consult under TUPE.
  • Failure to allow compensatory rest under the Working Time Regulations 1998.
  • Breach of the right to request time off for training.

This is to remedy what the government has identified as a mistake in the original legislation which categorised those claims as “Type A”, attracting the lower fees (£160 issue fee and £230 hearing fee). The Order also corrects errors in the existing legislation concerning the definition of “excluded benefits” in relation to fee remission.

Source: The Practical Law Company

If you need further advice on this blog, please send an email, or call me, on my mobile 07767 166705 or 01580 712718 (local office number) or 0207152 6550 (London office number).

© OSJ Law Limited


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