What do employers need to know and do this September?

Please find below our key points on recent case law and legislative developments. We have also updated our essential HR calendar setting out key employment law dates here.

The holiday pay time bomb…

Holiday pay remains a thorny and unresolved issue (see our earlier alert here). The Employment Appeal Tribunal (“EAT”) heard appeals in three cases in July on whether non-guaranteed overtime and other allowances should be included in holiday pay calculations. With a decision expected shortly, the outcome of these cases could affect all UK employers with significant financial repercussions. We shall be exploring how to minimise the impact of this bomb on 30 September in Reading, 16 October in London and 22 October in Bristol. Please contact us if you would like more details.

 Shared parental leave – time to get ready

We shall also be looking in our seminars at the long awaited introduction of shared parental leave. The new right will kick in for babies due on or after 5 April 2015 and children adopted on or after that date. Read the first of our blogs setting out an overview of this new right here.

Take legal advice when faced with an employee who resigns in breach of contract to avoid invalidating restrictive covenants

The High Court has held that an employer was entitled to affirm an employment contract when an employee resigned without notice in breach of contract, albeit that the employer stopped paying the employee’s salary. In not paying salary the employer was not itself in repudiatory breach of contract, it was simply an acknowledgement that the employee was unwilling to work. The High Court therefore granted an injunction requiring the employee to observe his employment contract for a reduced notice period which had been agreed with the employer, and the post-termination restrictions he was subject to. Whilst a helpful decision, employers would still be sensible to take legal advice when faced with such a situation to avoid placing themselves inadvertently in breach and thereby jeopardizing post-termination restrictions. (Sunrise Brokers LLP v Rodgers)

Do you have workers “on call”?

Two recent decisions have looked at “on call” time and how it should be treated.

• The Scottish EAT has held that ambulance paramedics who were contractually required to stay within a three-mile radius of the ambulance station and to respond within three-minutes were working during such on-call periods. The decisive factor was that they were limited by their employer to be present at a determined place and available to respond within a specific time. (Truslove and another v Scottish Ambulance Service)
• The EAT has held that a care worker sleeping whilst “on call” at a residential care home to deal with emergencies pursuant to statutory requirements was working during such periods and entitled to the national minimum wage, albeit that on occasions no duties were carried out. (Esparon (t/a Middle West Residential Care Home)

Remember the duty to make reasonable adjustments for a disabled employee during a redundancy process

Two recent EAT cases have highlighted the duty on employers to make reasonable adjustments in a redundancy process for a disabled employee, albeit that the employee may still have been made redundant in any event

• An employer failed in its duty to make reasonable adjustments when it did not adjust certain redundancy criteria which placed a disabled employee at a substantial disadvantage. The disadvantage was the receipt of lower scores, potentially attracting an injury to feelings award (albeit probably on the lower scale of the Vento guidelines). However, employers must be careful not to over compensate for employees with protected status. In the case of De Belin v Eversheds Legal Services Ltd, the Employment Tribunal held that Eversheds had discriminated against a male lawyer on the grounds of sex when, in a redundancy scoring exercise, it inflated the score of his female colleague to take account of the fact that she was on maternity leave. (Dominique v Toll Global Forwarding)
• An employer failed to make reasonable adjustments for an employee facing redundancy who was asked to attend interviews for an alternative position but who was unable to attend workplace interviews due to his disability. Although the employer had indicated that it would consider whether or not reasonable adjustments were needed if he was appointed to the alternative position, it failed to consider whether or not adjustments were needed to the application process. Reasonable adjustments could have included the employer visiting him at his home or asking his current managers whether or not they considered he was suitable for the post. It was not a reasonable adjustment to offer the employee the alternative post. (London Borough of Southwark v Charles)

If you wish to discuss any of the issues raised in this alert in further detail, please do not hesitate to contact your usual OC Contact.