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Employment Law Brief | August – September 2018

We hope you enjoyed the summer. Below are the cases and proposals that you may have missed whilst sunning yourselves. As usual, if you have any questions about any of the issues raised please don't hesitate to contact Liz Henry or James Austin.

Should employees be paid minimum wage for time spent sleeping?

In Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) the Court of Appeal looked at the question of whether workers who are required to sleep at or near their workplace and provide assistance if required are entitled to the national minimum wage (NMW) for the entirety of any such shift. The Court of Appeal held that they were only entitled to NMW for the time they were required to be awake for the purpose of working. This overturns a previous Employment Appeal Tribunal (EAT) decision and will be a boost for employers in the care industry.

More people bringing claims

ACAS' annual report shows that notifications to bring a claim have increased from 1,700 per week to 2,200 per week (29.4%) following the Supreme Court's ruling last July that tribunal fees were unlawful.

The report also states that the ACAS helpline answered 783,000 calls. The top three topics were discipline, dismissal and grievances; contracts; and wages and the national minimum wage.

Meanwhile, statistics published in the Law Society Gazette state that the number of claims increased 118% in the period January to March 2018 compared with the previous year.

This is proof, if any were needed, of an increased risk of claims, so it's important to take advice.

Can there be a TUPE transfer when a business hasn't operated for five months?

This question was considered by the European Court of Justice in Colino Sigüenza v Ayuntamiento de Valladolid and others. A contract to operate a Spanish music school was terminated because the organisation failed to perform it. The staff were dismissed but five months later a new contractor began delivering the service from the same premises and using the same instruments and resources. The ECJ held that in these circumstances the five month cessation didn't prevent the employees of the original provider being TUPE transferred to the new provider. It is worth noting that the five month period included three months of school holidays, so the position may be different in another sector.

Should voluntary overtime be taken into account when calculating holiday pay?

In Flowers v East of England Ambulance Trust the EAT said it should, provided the overtime takes place over a sufficient period of time.

Can a belief in the sanctity of copyright law amount to a protected characteristic?

As you may know, the law provides protection to people discriminated against on the grounds of religion or philosophical belief. Religion is usually easy to identify but there has been little case law examining what may qualify as a philosophical belief. One of the requirements though is that it must have a sufficient level of cogency, seriousness and cohesion to warrant protection.

In Gray v Mulberry, Mrs Gray had refused to sign a clause assigning copyright in her work to Mulberry. It seems she was concerned it would give them ownership of a novel and screenplay she was writing. She argued her belief in the sanctity of copyright law was a philosophical belief and thus a protected characteristic. The EAT upheld the Tribunal's decision that such a belief lacked sufficient cogency to be a philosophical belief. It also went on to state that even if that were not the case she could not claim indirect discrimination because she was the only person known to hold such a belief.

Do you inherit national minimum wage liabilities as part of a TUPE transfer?

The simple answer is "yes". HMRC has announced that from 2 July, where there is a TUPE transfer, they will now pursue the new employer for national minimum wage liabilities (including penalties) incurred by the previous employer.

Can solicitors tell you to disguise the dismissal of a disabled employee as redundancy?

Usually any discussions between solicitors and clients are "privileged" which means they are not disclosable in a tribunal or court. The exception is where the adviser is guilty of an iniquity which means their conduct goes, "…beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy."

In X v Y Ltd, X had claimed that the company's attempts to performance manage him amounted to disability discrimination. He went on to bring a tribunal claim on that basis. The company then went through a redundancy programme. During that process the company's solicitor emailed advice which appeared to suggest the redundancy programme was a good opportunity to dismiss X and avoid further discrimination claims. An anonymous person forwarded the email to X who wished to rely on it to prove that he was being victimised by the company. Whether there is an iniquity will depend on the facts of each individual case, but here the EAT held there was such an iniquity so the email could be considered by a tribunal deciding the outcome of X's claim.

Don't miss your deadline

Employees have to issue their tribunal claim within a set period of time or the Tribunal may be prevented from considering the claim. Traditionally this has been three months from the date of the act complained of (although this period is now extended by the period spent going through the ACAS Early Conciliation process and sometimes longer).

In Miah v Axis Security Services Ltd the last day for submitting a claim fell on a Sunday. The claimant posted the form on the preceding Friday but the rules are that a document sent by first class post is deemed to have been served on the second day after posting, excluding Sundays and public holidays. This meant the form was deemed to have been submitted on the Monday so was late. The EAT rejected the claimant's argument that the deadline should be automatically extended to the next working day and found that the claim was out of time.

New proposals to prevent sexual harassment

The Women and Equalities Commission has produced a report recommending that:

• employers be required to protect employees from sexual harassment in the workplace and that failure will be punishable by fines
• protection from third party harassment be reintroduced, potentially making employers liable for harassment where they have failed to take steps to prevent non-employees (including, for example, suppliers and visitors) from harassing staff
• the time limit for bringing a claim be extended from three to six months
• the ability to use confidentiality clauses in settlement agreements be limited and a standard Government approved confidentiality clause be used. These would be in, "…clear, plain English wording setting out the meaning, effect and limits of confidentiality clauses, including a clear explanation of what disclosures are protected under whistleblowing laws and cannot be prohibited or restricted."

As always we will let you know if this progresses.

Government looking to reduce discrimination against LGBT employees

The Government Equalities Office has issued an action plan to enhance LGBT rights in the workplace. The plan includes updating ACAS materials to assist with the protection of LGBT staff.

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