May 2014 Employment Law Newsletter


1. EMPLOYMENT UPDATE: ACAS Mandatory conciliation

Since 6 May 2014, potential claimants must first give details of their claim to ACAS before proceeding to the Employment tribunal. Further comments in the March 2014 update here:

2. WARNING: holiday pay should include commission

The European Court of Justice has ruled that workers who would ordinarily receive commission or other payments, such as shift allowances, in addition to their basic salary should be paid an amount in respect of these payments in during periods of holiday. The ECJ considered that to fail to do so would put the employee at a financial disadvantage during periods of annual leave and therefore could deter them from taking leave. This would be against the purpose of the working time directive.

The ECJ did not confirm how these payments should be calculated and the case has been referred back to the Employment Tribunal to consider whether the existing UK legislation can be interpreted consistently with the European directive and if so, the method of calculation.

Employers who have employees or workers who top up their basic salary through commission need to be aware of this decision and should review their current practice in calculating salary for annual leave periods. Legal advice should be sought where necessary.


The right to make a request to work flexibly will be extended to all employees with over 26 weeks continuous employment with effect from 30 June 2014. Further comments in February’s update

4. EMPLOYMENT UPDATE: LLP member = a worker

The Supreme Court has determined a partner of a law firm operating as a limited liability partnership (LLP) was a worker and therefore eligible to bring a whistleblowing claim against the LLP.

This decision overturns the previous decision of the Court of Appeal and highlighted that the basis for the decision was the fact that the partner concerned was unable to practice as a solicitor other than through the partnership. In these circumstances, the absence of subordination did not mean the partner could not also be a worker.

The decision is significant because workers benefit from a number of employment protection rights, such as the right to paid annual leave, to be auto-enrolled in a pension scheme and also have protection under the whistle-blowing legislation.


UNISON previously launched an application for a Judicial Review of the Government’s decision to implement fees payable by claimants in order to bring their claim to the employment tribunal. This was primarily on the basis that the fees denied access for justice and that they had a discriminatory impact on protected groups. However, UNISON’s application was dismissed following a hearing towards the end of last year.

At the time it was noted that the application was rather premature due to the absence of full statistics. Now that further statistics are available and these show over 75% reduction in the number of claims (see March update) UNISON’s application to appeal the decision to dismiss their application has been granted.

We will keep you informed of further developments.

6. GUIDANCE: Data protection

The Information Commissioner’s Office (ICO) has published new guidance for data controllers regarding the handling of any complaints and concerns.

Data controllers should be the first contact for any complaints made by data subjects. Instead of simply referring the issue or individual to the ICO, data controllers ought to work with the data subject to try to resolve matters in the first instance.

Therefore, ICO will consider complaints only where the data subject can show that they have first raised their concerns with the relevant data controller.

See the full guidance here

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 or  [email protected]

Follow Julie on Twitter: @JulieT_GL

Share this Newsletter

<i class=