March 2012 Employment Law Update
March 2012 Employment Law Update
If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181
1. Heavenly Partnership?!
The Court of Appeal has confirmed that the test for determining whether someone is a partner in a Limited Liability Partnership is the same as for other partnerships.
This means that partners can only bring unfair dismissal claims if they are able to show that they are also actually employees.
A partnership is:
- a business
- which is carried on by 2 or more persons in common
- with a view of profit
If the person trying to bring an unfair dismissal claim is a partner under that test, then they will not be regarded as an employee and therefore unable to bring a claim for unfair dismissal.
If not considered a partner, then the individual may be able to satisfy the tests for being an employee and be able to assert the various employment rights available to employees.
2. Please Sir, can I work some overtime?!
The Employment Appeal Tribunal has determined that employees are not entitled to be paid for overtime unless they have actually been asked to work it. This means if an employment contract states that overtime is voluntary and can only be worked on the employer’s request, then an employee does not have the right to overtime payment simply by working longer than their set hours unless they have been asked to do so.
THEREFORE, all employers should ensure that their staff are clear as to the circumstances in which overtime will be paid and that their contracts of employment reflect the same position.
3. The good, the bad & the ugly (Pay, suspension & notice!)
The Employment Appeal Tribunal has held that an employee who has been suspended from work until further notice and then resigns is still entitled to be paid for their notice period as long as they remain ready and willing to work.
This means that where an employee resigns after being suspended they are entitled to be paid up to the expiry of their notice period if they are still ready and willing to work during that notice period, unless their contract provides that there is no entitlement to pay during the period of suspension.
Employers should check the terms of the employee’s contract, and continue paying wages during the suspension period unless the employment contract specifically allows them not to do so. I would recommend that employers take specific legal advice if there is any uncertainty regarding these issues.
4. Health & safety…!
Are you up to date with your health and Safety obligations on home-working? If not, or if you would like more information, useful guidance can be found on the Health and Safety Executive website.
Generally, if the work carried out is ‘low risk’, office-type work, employers will only be responsible for work equipment used at home if they have supplied it. Where higher risk work activities carried out at home, employers should carry out a risk assessment. Guidance on carrying out a risk assessment can be found here.
Employers should ensure that they are aware of the other potential liabilities in connection home-workers’ employment and take further advice where necessary.
5. REVISITED: Discrimination & Matrimony!!
Those of you who have been paying attention(!) will recall in the December update that I commented on a case decided by the Employment Appeal Tribunal which found that the sex discrimination legislation could be interpreted to protect the employee by reason of her status of being married to her particular husband. Well, the EAT have now decided that it is not unlawful discrimination on the grounds of marital status where a spouse was dismissed on grounds of being married to a particular person as long as the motivation for the treatment was not specifically marriage! This now leaves us with some conflicting authorities on the point, so it will remain very important to have a good equal opportunities policy in place and take advice as required.
Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181
Follow Julie on Twitter: @JulieT_GL
