ADR for employment lawyers: lessons from the Civil Justice Council?

This article was first published in the ELA Briefing March 2019.

Author: Peter Frost

With the abolition of tribunal fees, the number of claims has increased considerably. But greater access to justice is only meaningful if that system of justice works efficiently and employment lawyers have misgivings as to the operation of the current Employment Tribunal Service. Therefore, it seems propitious to re-examine ADR as a means of resolving employment disputes.

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UK: ECJ cases raise doubts over the inclusion of regular voluntary overtime in holiday pay calculations and over record-keeping requirements

Comments made in an ECJ judgment on a German working time case have raised doubts as to the correctness of the UK Employment Appeal Tribunal’s rulings that pay during the 4 weeks EU-derived statutory holiday must include an amount for voluntary overtime (if sufficiently regular and paid over a sufficient period). In Hein v Albert Holzkamm, the ECJ noted that remuneration for overtime of an “exceptional and unforeseeable nature” need not be included when calculating holiday pay, but that overtime pay should be included where a worker’s contract obliges them to work overtime “on a broadly regular and predictable basis and the corresponding pay constitutes a significant element of the total remuneration”. Domestic legislation does not need to be interpreted as giving the right that pay received for overtime work be taken into account unless these conditions are satisfied. Continue reading

UK: Court of Appeal confirms broad approach to permissible equal pay comparators and procedural requirements

The Court of Appeal has given two rulings in the long-running equal value claim against Asda, in both cases ruling on preliminary points in favour of the store workers claiming equal pay with distribution depot workers. The claims will now proceed to determine whether the roles are of equal value and, if so, whether the employer has a ‘genuine material factor’ defence (ie, a reason for the pay difference which is not tainted by sex discrimination). Continue reading

Brexit: updated “no deal” guidance for EEA citizens

On 28 January 2019 the UK Government published guidance for EEA and Swiss citizens arriving in the UK after 29 March 2019 in the event of a “no deal” Brexit. 

Individuals will still be able to enter the UK to visit, work or study, but those who wish to remain for longer than 3 months will need to apply for European Temporary Leave to Remain which will be valid for 3 years only. After this period elapses, these citizens’ right to stay in the UK will be subject to the new immigration system planned to take effect on 1 January 2021.

We have updated our Brexit Legal Guide section on migration with the proposed regime.

The Government has also announced that it is scrapping the £65 fee for eligible EU citizens to apply for settled status.

UK: revised Code on right to work checks, consultation on national minimum wage rules, age discrimination guide

  • The Home Office has published a revised Code of Practice on preventing illegal working, which reflects the ability for employers to check certain employees’ right to work records solely by online check from 28 January 2019 (see here).
  • The Government has published a consultation until 1 March 2019 on possible minor amendments to national minimum wage legislation in relation to salaried hours work and salary sacrifice (see here).
  • Acas has published a guide highlighting key areas where age discrimination may happen.

UK: allegation of defamation can be protected whistleblowing disclosure

The EAT in Ibrahim v HCA International has confirmed that an employee’s disclosure complaining of false rumours circulating about him was an allegation of failure to comply with a legal obligation (ie, defamation). It was therefore capable of amounting to a qualifying disclosure for the purposes of whistleblowing protection, notwithstanding the employee’s failure to use precise legal terminology, given the substance of his complaint was clear. However, on the facts the claim failed as the employee did not have a subjective belief that his disclosure was in the public interest.

UK: proposals to extend redundancy protection for employees who are pregnant or returning from maternity leave

The Government has published a consultation until 5 April 2019 on proposals to extend the current period of protection for women on maternity leave during which they are given priority over any suitable alternative vacancies should their role be made redundant. (An employer’s failure to offer any such available vacancies renders the consequent redundancy dismissal automatically unfair.)

The main proposal is to extend this right of priority over vacancies to apply from the point at which the employee notifies her employer of her pregnancy in writing, through to six months after a new mother returns to work. The consultation seeks views on how this should work where an employee takes some other form of leave immediately after her maternity leave (such as annual leave or a career break) and also whether the protection should be extended to those returning from adoption leave, shared parental leave and longer periods of parental leave.

UK: further gender pay gap reporting guidance but no imminent change to requirements

As the second deadline for reports approaches, the Equalities and Human Rights Commission has published a report urging employers to accompany their figures with narrative reports and action plans with concrete, time-bound target-driven activities to reduce the gap. The report highlights ideas for action and recommends employers to refer to the Government Equalities Office evidence-based guide on practical steps to close the gender pay gap (discussed in our blog post here).

The Government has also published its formal response to the House of Commons BEIS Committee’s report (see our blog post here) on gender pay gap reporting, clearly signalling that it is not planning any immediate changes to the regime and will await the statutory review scheduled for 5 years post-implementation.

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UK: Disability discrimination: rulings on unfavourable treatment and PHI benefits

  • The Supreme Court has upheld a Court of Appeal decision that treatment of a disabled employee which is advantageous (permitting ill health early retirement) cannot be viewed as unlawful ‘unfavourable treatment’ due to disability simply because it could have been more advantageous. In this case the pension was based on the part-time hours the employee had changed to pre-retirement, as a reasonable adjustment for his disability, rather than full-time hours. However, had he been able to work full-time, he would not have been entitled to retire early at all. (Williams v The Trustees of Swansea University Pension & Assurance Scheme)

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