What's on the horizon
Meredith Hurst Thursday, January 14, 2016
Now that the 'silly season' is a distant memory and any unnecessary spillages at the Christmas party mopped up, it is time to reflect on what has been an eventful year in the world of employment law. We continue to grapple with holiday pay claims. We are awaiting the Employment Appeal Tribunal decision in Lock v British Gas. British Gas is appealing the finding that holiday pay should be calculated to include commission and overtime. British Gas is arguing that holiday pay, commission and overtime are dealt with under different legal provisions.
An interesting case for HR professionals is Ramphal v Department for Transport in which the Employment Appeal Tribunal has criticised HR involvement in the employer's decision to terminate employment. HR input must extend to legal and procedural matters only and not questions about the reasonable belief, which is the preserve of the investigating officer and disciplinary chair.
On 12 January 2016, the European Court of Human Rights handed down its judgment in the case of a Romanian worker who was dismissed for private communications at work. This is a surprising judgment in some respects because an individual does not (as dissenting Judge Pinto opined) 'abandon their right to privacy and data protection every morning at the doors of the workplace'. The Court found that the employee's communications were about his private life, but the decisive factors against the employee were: his denial of any personal use of his workplace computer, the fact that he had been 'blatantly wasting time' and a company ban on personal use of the company's resources. Examination of private communications was legitimate in the context of a disciplinary investigation into how the employee spent his time.
Employment litigation generally however, has seen a general slowdown over the past 12 months with some tribunals reporting an 80% drop in the number of claims coming to trial. The introduction of fees - good for employers, not so good for the impecunious - has undoubtedly played a part, as has the introduction of the ACAS early conciliation process.
We aren't going to see any ground breaking legislative changes but continued tinkering in the coming months. The Small Business Enterprise and Employment Act 2015 is now in force which covers the minimum wage, zero hours contracts, gender pay gap reporting and annual reporting on whistleblowing among other things. The second reading of the Enterprise Bill 2015/2016 will take place later this year. This caps public sector exit packages and offers protection for apprentices.
As for further case law on the horizon, and in particular those cases concerning holiday pay, we will keep you updated as the year progresses.