Employment Law Newsletter – April 2015

Welcome to our April 2015 Employment Law Newsletter, keeping you up to date with changes in employment law and informing you of recent case law developments over the last month.

It was an unusually quiet month in terms of case law, although the long awaited case of Locke -v- British Gas took a step further forward (see below).


Holiday Pay: Locke –v- British Gas, ET

Mr Locke had claimed that the commission he had earned should be taken into account when calculating his holiday pay so that he would not lose income by taking annual leave.

Following the ECJ’s decision last year, which we have reported extensively on in our previous updates, the Employment Tribunal has now held that Mr Locke’s holiday pay should include an element for his commission.

This will impact on all industries where commission makes up a large proportion of an employee’s income such as the building trade and sales. It will now cost businesses more in wages. This does however only apply to entitlements to annual leave under the Working Time Regulations and does not extend to any additional contractual leave that an employee is entitled to.

The Courts however have yet to establish how such additional elements of holiday should be calculated.

Disability and Constructive Knowledge: Donelien –v- Liberata UK Limited, EAT

In this case the EAT had to consider whether an employer had constructive knowledge of an employee’s disability where the employer had relied on an occupational health report which had been flawed with discrepancies but had nonetheless taken some other measures too. In this case the EAT held that the employer had taken reasonable steps, but not every step possible, in order to establish whether the employee was disabled. The EAT held that nonetheless the employer had done enough to avoid having constructive knowledge of the disability.

This case provides some comfort for employers dealing with continuous short term absences. It establishes that an employer does not need to have taken every step possible in order to discover an employee’s disability. However, the case does clearly set out that each case will be determined by it’s facts so it doesn’t set a hard and fast rule for employers.

We always advise that where it is obvious on the face of medical or occupational reports that they are flawed or that they are inconsistent that further investigation should be undertaken. Furthermore an employee can move from not being disabled to being disabled within a short period of time once, for example, underlying causes of various ailments are identified and therefore employers should be cautious in their decision making.


Revised ACAS Code of Practice

The change to the ACAS Code of Practice on disciplinaries reflects the EAT Judgment in Toal -v- GB Oils and came into effect from 11th March 2015. The revision confirms that employers must agree to a worker’s request to be accompanied to a disciplinary or grievance meeting by their chosen companion, whether it’s a colleague or Trade Union representative or official. The code clarifies that the statutory requirements for any such request to be “reasonable” applies to the making of the request, not the workers choice of colleague or Trade Union representative. In certain circumstances it can be helpful to have an alternative companion to accompany an employee to a meeting, in order to comply with the need to make reasonable adjustments or to be able to practically deal with a situation which would otherwise be drawn out longer than necessary. If you need any practical advice on this please contact our employment team.

Shared Parental Leave – Babies due on or after 5th April 2015

Do you have a policy in place?

Have you decided what value of pay you will apply?

Have you decided whether you can only accommodate a continuous block of leave or disbursed block of leave?

If the answer is ‘No’ to any of the above and you require some guidance on a Shared Parental Leave Policy please contact the employment team.

Contact Us
If you require any further clarification in relation to the above developments, or if you need any further assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304.

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