June 2015 Employment Law Update


Employment Tribunal Fees: Review announced

The Ministry of Justice has announced that the impact of tribunal fees will be assessed to consider the financial situation, whether alternative methods of resolving disputes are being encouraged and whether there is still access to justice. The review is to include making any recommendations to change the structure or level of fees or ways to streamline the process to make it more cost effective.

Travel & Working Time

Generally it is easy to tell when an employee is working and when they are not, however, the question of travelling time for employees who do not have a fixed place of work has often been contentious.

This month Advocate General Bot has delivered his opinion regarding a case before the European Court of Justice which is considering the time spent travelling to and from the first and last jobs of the day for employees who do not have a fixed place of work.

The Working Time Directive definition includes three criteria that need to be satisfied for time to be classed as working time requiring that the workers should be:

In this instance, the Advocate General confirmed the view that if there was not a fixed place of work the time spent travelling to and from the first and last jobs should also be treated as working time.

The ECJ does not have to follow the opinion so we will have to wait and see. In the meantime, employers with workers who do not have a fixed place of work should assess their working time.

Capped holiday pay claims

With effect from 1 July 2015 there is a cap of two years for backdated holiday pay claims.

WARNING: Collective Consultation & the protective award

The Employment Appeal tribunal has upheld an award of 90 days’ pay as a protective award to employees who were made redundant without any prior consultation. The Employer was apparently unaware that the collective consultation obligations were triggered when it was considering closing the school and making all staff redundant. The closure triggered the additional collective consultation obligations because of the plans to dismiss more than 20 employees within a period of 90 days or less.

The employer should have consulted with the employees to explore ways to avoid the need to make redundancies, to reduce the number that had to be dismissed and explore other ways of mitigating the consequences of the dismissals.

The employer had sought to rely on the ‘special circumstances’ exception, but this was not successful because the tribunal found the employer had not taken ‘all such steps towards compliance with that requirement as are reasonably practicable’.

It was also determined that the fact that the consultation may not have made any difference did not reduce the liability as the power to make the protective award was there to be a penalty on the employer rather than to compensate the employee for their losses.

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