Key Employment Law Decisions for 2015


Working TIme: Federacion De Servicios Privados Del Sindicato Comisiones Oberas–V- Tyco Integrated Security SL and Another

The European Court of Justice has held that employees who do not have a workbase such as carers and salespeople must have their travel from and to home for the first and last customer visits included as part of their working time.

The Role Of HR in Disciplinary Proceedings : Raphal –V- Department For Transport

The Employment Appeal Tribunal provided guidance on the extent to which HR may play a role in disciplinary proceedings.

It held that HR must be careful to limit their advice to questions of law, procedure and process. It was also acceptable for HR to provide advice to achieve consistency but it was not appropriate for them to advise on the level of sanction/culpability.

Annual Leave and Long Term Sickness Absence: Plumb -V- Duncan Print Group (EAT)

The Employment Appeal Tribunal has applied European case law to decide that employees may carry over their holidays if they are absent from work on long term sickness without the need to prove that they were unable or unwilling to take their leave due to illness.

According to this decision employers can limit the carry over period for up to 18 months from the end of the holiday in which the entitlement accrued.

On the whole this is a positive finding for employers as the Employment Appeal Tribunal has restricted the ability of employees to accumulate and carry forward accrued but untaken leave. However, the Employment Appeal Tribunal  has granted permission for Mr Plumb to appeal this decision as he was seeking to recover for 60 days holiday relating to a period be 2010-2012, so we can expect to hear more on this subject in 2016.

Breach of Trust and Confidence : Stevens-v-University of Birmingham ( High Court)

The high court has held that the University’s refusal to allow Professor Stevens to be accompanied to a disciplinary investigation by his choice of representative  amounted to a breach of its implied duty of trust and confidence.

Most employers will limit the right to be accompanied to such investigations either a work colleague or trade union representative. This is consistent with the ACAS Code of Practice on Discipline and Grievance. However when you are faced with a situation where neither can accompany the employee and they suggest an alternative representative, this case suggests the need to consider and most likely allow the employee to be accompanied by their chosen alternative.

Holiday Pay : Patterson -V- Castlereah Borough Council

A decision from the Northern Ireland Court of Appeal established that it is in principal possible for voluntary overtime to be included as part of an employees”normal remuneration” if it is normally carried out as an “appropriate permanent feature ” at the employees remuneration.

Although this decision id not binding it would still be persuasive in English courts.

Going forward we still need to look out for more practical guidance from other cases on this subject. But for we can assume that each case must be determined on its own individual facts and a Tribunal will have to decide whether or not the overtime was worked with such regularity  so as to form part of the employees remuneration.