Scotland

General News, Articles and Information from The POA North of the Border:

01.06.2014

Levy & McRae Newsbrief: May 2014

Constructive dismissal: employee affirmed contract by giving far more notice than was contractually required

The EAT has held that an employee who gave much longer notice than was contractually required had affirmed his contract. He had therefore waived his right to claim constructive dismissal.

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Holiday pay MUST include commission

In the recent case of in British Gas v Lock the European Court of Justice held that under the Working Time Directive a worker’s statutory holiday pay must not be limited to basic salary where commission is paid.

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National minimum wage

Where a care worker was required to work a number of ’sleep in’ night shifts at the employer’s premises, and be available for emergency purposes, did the night shifts constitute ‘time work’ for the purposes of the National Minimum Wage legislation (or was she merely ‘on call’)?

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Contacting Acas for early conciliation is mandatory from 6 May 2014

The early conciliation (EC) scheme – under which anyone considering bringing an employment tribunal claim must first contact Acas to see whether the dispute can be resolved through conciliation – came into force on 6 April 2014 for a transitional month, during which parties could undertake EC if they so wished but were not obliged to do so.

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Ashcourt Rowan Financial Planning Ltd v Hall [2013] IRLR 246

A garden leave clause is an express provision in a contract that states that the employer is under no obligation to provide any work to the employee and has the right to send the employee home.

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Court of Appeal discourages EAT from substituting decision after successful appeal

When may the Employment Appeal Tribunal substitute its own decision for that of the employment tribunal, rather than remit?

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Employers should be more carer-friendly

The Equality and Human Rights Commission (EHRC) has told the Court of Appeal that employers should, as far as is reasonable, make adjustments to support members of staff who are caring for disabled family members.

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Preventing illegal working

Draft legislation will (subject to parliamentary approval) double the penalty for illegally employing a person not entitled to work in the UK, increasing it from £10,000 to £20,000.

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Transferred employees cannot claim against the transferee for providing misleading information pre-transfer

The EAT has held that transferring employees can only obtain compensation from the transferee for its failure to provide the transferor with adequate information about measures it envisages taking with respect to those employees if:

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LLP members can raise whistleblowing claims

The right of a worker to be protected from detriment if they expose their employer’s illegal activity is an important one. The legislation sets out that this right is afforded to “workers”, a wider category than employers but nonetheless one that has some restrictions.

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Dismissal for inappropriate display of religious beliefs was not religious discrimination

A nursery manager has lost her claim for religious discrimination after her employer, a nursery, dismissed her for gross misconduct. The manager, Anna Grace, was accused of manifesting her religious beliefs in such a way as to upset her colleagues.

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Direct discrimination: mental processes of those influencing the decision-maker must be considered

The EAT has held that an employment tribunal adopted the wrong approach when considering whether a decision to terminate a consultancy agreement was on the grounds of age.

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Age Discrimination: Interesting Case

The EAT (Langstaff P) has handed down judgment in the case of Clements v Lloyds Bank, which concerned the interaction of discrimination and constructive unfair dismissal.

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Employment judge wrong to find express contract of employment without consideration

In Ajar-Tec Ltd v Stack the EAT has held that an employment judge erred by finding an express contract of employment where there was no consideration.

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Findings on safety of older workers

A new study has been published on the health and safety issues at work relating to employees who are aged over 60.

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UNISON granted permission to appeal High Court decision on employment tribunal fees

UNISON has been granted permission to appeal the High Court’s decision to dismiss its application for judicial review of the introduction of fees in the employment tribunal.

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Unfair Dismissal Cap Challenge Fails

An attempt to quash the new cap on the unfair dismissal compensatory award has failed.

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TUPE: Relocation and ETO

Is the requirement to work in a different location following a TUPE transfer a ‘change in the workforce’ within the meaning of the (pre-2014 amendments) TUPE Regulations?

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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.

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No apparent bias where judge’s daughter is lawyer at claimant’s solicitors

There was no requirement for an employment judge to recuse himself because his daughter was a partner of the law firm representing the claimant.

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