1. Employment Law Update - March 2016
presented by John Sprack for LawWorks

2. Working time
Federation de Services Privados del syndicate Comisiones obreras v Tyco Integrated Security SL (C-266/14). The Tyco case
Time spent travelling from home to customers’ premises can count as travelling time
Hence it came within the Working Time Directive
What about the National Minimum Wage Regulations?

3. National Minimum Wage NMW Regs in force 1 April 2016
age 25+ £7.20 per hour (the National Living Wage)
21-25 £6.70
18-21 £5.30
under 18 £3.87
apprentices £3.30

4. Holiday Pay Lock v British Gas(UKEAT/0189/15)
Domestic legislation (WTR and ERA 1996) can and must be interpreted in accordance with the Working Time Directive
results-based commission properly included within the calculation for holiday pay

5. Discrimination(1)
Instruction to a Russian speaker to speak English at work was not discrimination
Note the circumstances: laboratory involving animal testing, with security policy
Kelly v Covance Laboratories Ltd (UKEAT/0186/15)

6. Discrimination (2) Disability discrimination - day-to-day activities
Warehouse work (and work generally) came within its scope
Banaszyk v Booker (UKEAT/0132/15)

7. Dismissal and discipline
Barbulescu v Romania (ECHR 61496)
Employer monitored s by employees when at work
discovered B was sending/receiving personal s contrary to contract and dismissed him
B argued the evidence had been admitted contrary to Art 8 ECHR: respect for private life and correspondence
ECtHR held Romainian court entitled to hear the evidence

8. Whistleblowing Soh v Imperial College (UKEAT/0350/14)
clarifying the reasonable belief requirement on behalf of the person making the protected disclosure (whistleblowing)
did she have reason to believe the information disclosed “tended to show” breach of a legal obligation?

9. Mitigation of loss
“It is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate”
Cooper Contracting Ltd v Lindsey(UKEAT/0184/15)
the burden is on the employer
Claimant must be shown to have acted unreasonably - it is a question of fact, assessed objectively but taking C’s views and wishes into account
tribunals should not Claimants on trial as if the losses were their fault

10. Injury to feelings awards
Moorthy v HMRC [2016] UKUT 13 TCC
Upper Tribunal (Tax and Chancery Chamber) has held that payment made for injury to feelings may be subject to tax
Such a payment is taxable on termination, but not for discrimination during employment
There must therefore be an apportionment
Grossing up?

11. Fees - permission to appeal
Unison has been granted permission to appeal to the Supreme Court against the Court of Appeal decision to refuse judicial review of ET fees regime

12. Fees and remission
HMCTS has introduced a new procedure for dealing with applications for remission from fees
Entitled “Help with Fees”
Less paperwork involved and evidence need not be produced at the outset
Checks may be made later, so claimants need to retain any relevant documents

13. Fees and Time Limits Software Box Ltd v Gannon (UKEAT/0433/14)
claim submitted out of time
previous claim submitted in time but not dealt with due to administrative error - not telling C her application for remission was rejected
held it was not reasonably practicable to present the second claim in time
focus must be on what was reasonably understood by C at the time

14. Early conciliation Mist v Derby Community NHS Trust (UKEAT/0170/15)
Error in identifying a Respondent in an ACAS early conciliation certificate does not prevent ET from accepting the claim
And no further EC notification was required for an application to join a second Respondent to the claim - see also Science Warehouse v Mills (UKEAT/0224/15)

15. Interpreters Did the lack of interpreter render proceedings unfair?
EAT held that in the circumstances it did not
Hak v St Christopher’s Fellowship (UKEAT/0446/14)

16. Case Management
Can a case management decision made by one EJ be revoked by another EJ later?
Only in limited circumstances e g material change of circumstances, original decision based on misstatement of fact, error of law
Serco v Wells (UKEAT/0330/15/RN)

17. Penalties for failure to pay awards
Warning notice to be issued if award or settlement unpaid - ss 37A to 37Q Employment Tribunals Act 1996
If money remains unpaid, penalty of 50% of award (£100 minimum, £5,000 maximum)
paid to government, not the claimant
in force April 2016

18. Postponements consultation
Government proposes to amend ET rules to limit postponements
limit to two per party, save in exceptional circumstances, or where the other party is at fault, or to promote a settlement
applications must be made at least 7 days before the hearing, save in exceptional circumstances
costs must be considered if not 7 days or more
consultation responses stated the measures were not needed, but govt will proceed anyway!

19. Briggs Report Interim report by Briggs LJ paras 11.8 to 11.18
tentative suggestion that ETs and EAT be moved into the civil court structure
final report July 2016

20. Contact details I can be contacted via my website www.johnsprack.co.uk
where a sample of “Blackstone’s Employment Tribunals Handbook” is available