Here are the top five employment law cases of 2016 so far, some of which have fairly far reaching implications.
Commission and holiday pay – Lock and another v British Gas Trading Ltd (No.2) (EAT)
This Employment Appeal Tribunal (EAT) agreed with the employment tribunal that the Working Time Regulations 1998 can be interpreted to require employers to include a worker’s commission payments in the calculation of his or her holiday pay.
The case went to the Court of Appeal and was heard on 11 July 2016. The Court of Appeal judgment is awaited.
Childcare vouchers during maternity leave – Peninsula Business Services Ltd v Donaldson (EAT)
HM Revenue & Customs (HMRC) advice has traditionally been that it is unlawful for an employer to make the suspension of childcare vouchers scheme membership during maternity leave a prerequisite of joining.
Official HMRC guidance stated that “non-cash benefits, such as childcare vouchers that can be used only by the employee and are not transferable…must continue to be provided during ordinary maternity leave and additional maternity leave”.
Peninsula’s childcare vouchers scheme was the subject of a legal challenge because its scheme requires employees to agree to suspend their membership during maternity leave.
An employment tribunal decision that Peninsula’s childcare vouchers scheme was discriminatory was overturned by the EAT. The EAT found that employers that make deductions from an employee’s salary in return for childcare vouchers do not have to continue to provide the vouchers during maternity leave.
Monitoring employees’ social media – Barbulescu v Romania (ECHR)
In this Romanian case, the European Court of Human Rights (ECHR) examined the scope of employees’ right to a private life in relation to social media activity.
An engineer who was dismissed for using Yahoo Messenger to chat with his family, as well as professional contacts, challenged his employer’s actions as a breach of the European Convention on Human Rights.
However, the ECHR held that the employer’s actions were justified because it was seeking to verify that the employee was using his work computer and social media account for work purposes only.
This case will now go to the ECHR’s Grand Chamber. The hearing is scheduled to take place on 30 November 2016.
Misconduct dismissal for “pulling a sickie” – Metroline West Ltd v Ajaj (EAT)
The EAT affirmed that an employee who makes up, or exaggerates the effects of, an injury or illness to take fraudulent sick leave is fundamentally breaching the implied term of trust and confidence and can be dismissed for misconduct.
This case reiterates for employers that “pulling a sickie” is a misconduct, rather than a capability, issue. This means that a dismissal for fraudulent sick leave must be based on reasonable grounds, following a reasonable investigation.
Reasonable adjustments for disabled people – Carreras v United First Partners Research (EAT)
When considering the duty to make reasonable adjustments, employers need to pay particular attention to disabled workers’ hours of work.
In this case, the disabled employee believed that he was disadvantaged because there was an expectation in his workplace that employees work late, even though there was no strict requirement to do so.
In upholding the reasonable adjustments claim, the EAT held that working late does not have to be presented as an instruction to cause a disadvantage.
In practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.
If you think any of these issues could affect your business, do get in touch with us. Call us on 0118 940 3032 or email firstname.lastname@example.org.
On 18 October 2016 we’ll be running our next Employment Law Update workshop, to bring you right up to speed on any changes that might affect your business. You can book your place online here.