Employment Law Newsletter – October 2018

Shiva Shadi, Partner and Head of Employment at Davis Blank Furniss

Welcome to our Employment Law Newsletter!

It has been a busy time since our last newsletter with some significant Court decisions which we have set out below.

You may be aware that the Government recently published a White Paper which indicates that no EU based laws will be repealed following Brexit meaning that TUPE, the Working Time Regulations, collective consultation requirements and discrimination based legislation will not be amended when we leave the EU.  This will, however, all depend on whether a deal is reached.  We will, of course, keep you informed of the potential impact of the Brexit negotiations on any employment related issues.

Holiday Pay – Voluntary Overtime

Holiday pay continues to be a developing area through case law.  The case of Flowers –v- East of England Ambulance Trust revisited the question of whether voluntary overtime should be taken into account when calculating holiday pay.  The facts of the case involved ambulance crews whose contracts provided for ”non-guaranteed” overtime, which was mandatory, and also “voluntary” overtime, which was voluntary – both of which occurred on an entirely irregular basis.  The ambulance crew argued that their “normal” remuneration should include “voluntary” overtime.  The EAT agreed that if voluntary overtime is paid over a sufficient period then it should be taken into account when calculating holiday pay.  However, it said it was a matter of fact for the Employment Tribunal to establish whether the individuals “voluntary” overtime was over a “sufficient period of time”.  Therefore, the EAT followed the existing decision of Dudley Metropolitan Borough Council –v- Willetts.

Minimum Wage and Sleep

The Court of Appeal has held in the case of MenCap –v- Tomlinson – Blake that carers who sleep at client’s homes and are therefore “on call” are not entitled to minimum wage whilst they are asleep.

The Court of Appeal decided that such workers should only be entitled to count sleep-in hours for minimum wage purposes where they are required to be awake in order to carry out specific activities.  The case, however, is being appealed and we will keep you updated on its progress.

Disability Discrimination


In the case of Dunn –v- Secretary of State for Justice and another, the Court of Appeal held that a badly handled ill health retirement procedure did not amount to disability discrimination.

Mr Dunne was employed as a prison inspector but became ill with depression and a serious heart condition.  He applied for early retirement but also claimed disability discrimination because of the manner in which the Ministry of Justice had dealt with his ill health retirement.

The case reached the Court of Appeal which held that there was no disability discrimination as there was no evidence of a discriminatory motivation on the part of the decision makers.  This was despite the process being held to have been defective by the Court.

Discrimination – Philosophical Belief

In the case of Gray –v- Mulberry the EAT held that  where the employee is the only person to hold such a belief an employer could not have discriminated on the grounds of that philosophical belief.

Ms Gray worked for Mulberry but refused to sign a clause assigning copyright in her work to her employer.  Her main fear was it would give her employer right of ownership over a novel and a screenplay she was writing.  The employer specifically excluded these in an updated draft of the contract.  When Ms Gray was eventually dismissed she claimed her belief in the sanctity of copyright law was a philosophical belief and that it was a protected characteristic.   The EAT held that the belief lacked sufficient clarity to qualify under the Equality Act 2010.

The EAT went on to say that as Ms Gray was the only person with that belief there was no disadvantaged group and therefore no indirect discrimination.  Permission has been given for her to appeal to the Court of Appeal.

Direct Discrimination

In Lee –v- Ashers Baking Company Ltd and Others the Supreme Court has held that it is not directly discriminatory for a Christian baker to refuse to bake a cake containing a message which supports gay marriage.

This case has played out in the media for some time as well as the Courts.   Ashers owners, who are religious Christians, refused to bake a cake with a photo of Bert and Ernie from Sesame Street with the wording “support gay marriage”.

Mr Lee, who had asked the bakery to bake the cake, pursued a claim for discrimination through the Northern Irish Courts and was successful up to the Court of Appeal, but has now been overruled by the Supreme Court.

The Court held that the bakers refusal was not because of Mr Lee’s sexual orientation and therefore was not direct discrimination. The Court was also not satisfied that it was associative direct discrimination.

Vicarious Liability

The Court of Appeal in Bellman –v- Northampton Recruitment Limited has held that the Respondent company was vicariously liable for its managing director’s actions at a Christmas party.   Following a Christmas party organised by the Respondent company, the MD arranged taxis to transport staff to a hotel where they continued drinking with the drinks being paid mainly by the company.  Later on that evening, an argument broke out about a decision that had been made by the MD which led to the MD summoning the staff to lecture them at the after party.  Mr Bellman then questioned the MD’s decision which resulted in him punching Mr Bellman and causing brain damage.

The Court took into account that the MD owned the company and was in fact its most senior employee.  He also had control over how he conducted his role.  When he was lecturing his staff at the after party he was doing so with his MD’s hat on and establishing his authority in that role.

Furthermore the Court considers that the after party was not purely a social event but a follow on from an organised work event attended by most of the company’s employees.  It was therefore held that there was sufficient connection between the MD’s wrongful conduct and his role and accordingly the company was held to be vicariously liable for his actions.

It is envisaged that damages will be in the region of £1,000,000.


In the case of Colino Siguenza –v- Ayuntamiento de Valladolid and Others the CJEU considered whether a five-month suspension in an undertaking’s activities impeded a TUPE Transfer.

A music teacher, together with all his colleagues, was dismissed on 27th March 2013 and on 1st April 2013, two months before the end of the academic year the employer/contractor ceased its activities.

A tendering process followed and in August 2013 the local authority assigned the management of the school to a new contractor which started activities in September 2013.  However, none of the original staff were re-employed.

On the basis that three months of the five months suspension of activities had included school holidays, the CJEU concluded that the suspension of activities could not preclude the possibility of a TUPE transfer.

This illustrates that it’s not just looking at the specific period of cessation, but actually what has taken place during that period of time when considering the TUPE Regulations.

TUPE 2 – Travel Allowance

In Tabberer and Others –v- Mears Ltd and Others the EAT held that the removal of an “out dated and unjustified” contractual allowance was not void under TUPE.

The electricians under their previous employment with the council had an entitlement to “Electricians Travel Time Allowance” which had been introduced back in 1958.  This allowance was contractual, however due to the changes in the working practices of the transferor over the years, it was no longer applicable and therefore Mears Limited gave notice to vary the electricians contracts and bring an end to the allowance.

The EAT held that the question that should be asked is: “What is the reason? What caused the employer to do what it did?”

In this particular case it wasn’t the TUPE transfer that led to the variation but because the allowance was outdated in line with the organisations working practices.

Whilst this case is fact sensitive it does set out a clear test of establishing whether changes to Terms and Conditions are in fact by reason of a transfer.

Employment References

Employment references are run of the mill everyday occurrences, however they do cause no end of issues for employers and – in turn – employees.

Helpfully, ACAS has released guidance on providing employment references, setting out what references should include, whether or not references must be provided and whether an employer can give a bad reference etc.

Whilst most organisations now tend to provide factual references, this does not preclude employees requesting more detailed references to be provided so they can stand out from the crowd in what is currently a competitive job market.


Parental Bereavement (Leave and Pay) Act 2018

This Act received Royal Assent in September and provides a right to two weeks away from work for those employees who have unfortunately lost a child under the age of 18.  There will be supporting regulations to follow that will set out details including remuneration, if any etc.

The Regulations are not expected to be in full force until April 2020.

Tribunal Statistics

The Ministry of Defence has published its latest statistics for the period of April to June 2018.

The statistics show that the number of single employment tribunal claims increased by 165% and the number of single claims outstanding rose by 130%.  Recruitment of judges is currently being undertaken but the backlog will still take some time to clear.

In terms of awards given, disability discrimination had the largest average award at £30,700 and religious discrimination the lowest averaging £5,100. The average award for unfair dismissal during that period was £15,007.

The removal of fees has certainly had a significant impact and we are finding that response times from the Tribunal keep getting longer.  It is also a warning to employers that the deterrent for Claimants is no longer there and it is even more crucial that policies and procedures are correctly implemented.

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.

This newsletter does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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