HMO Quarterly Employment Bulletin – January 2015

HMO Quarterly Employment Bulletin – January 2015

Overtime and Holiday Pay.

In November the EAT made a ruling in the cases of Bear Scotland v Fulton, Hertel (UK) Limited v Wood and Amec v Law on the use of overtime in calculating an employees holiday pay.

The Appeals Tribunal confirmed that non guaranteed overtime, as well as contractual, should be included in the calculation of holiday pay. It should be noted that this only applied to an employees statutory holiday entitlements (as opposed to contractual).

What is not presently clear is whether voluntary or occasional overtime should also be included.


Parental Leave

A new shared parental leave system came in to force on 1 December 2014. It provides qualifying employees with the entitlement to share up to 52 weeks leave with their partner or the child’s father.

The Regulations will apply to employees expecting a baby on or after 5 April 2015 and adoptive parents will also be able to benefit from the new system.

A good practice guide has been prepared by ACAS for the benefit of employers and employees which is available to download from their website.


Employment Tribunal Fees

The ongoing saga concerning Employment Tribunal fees continues.

There has now been a wealth of statistics to suggest a two thirds drop in new claims, far beyond what had originally been envisaged.

The second challenge to the regime brought by UNISON was unsuccessful in the High Court in December. However a key reason for the failure of the claim was that, the absence of evidence from actual Claimants that they had been hindered in bringing the claim (UNISON relied on theoretical evidence), hints at further challenges to the system (UNISON have indicated that they are already planning a further appeal).


ACAS Early Conciliation

From May 2014 it become compulsory for anybody bringing an Employment Tribunal Claim to attempt conciliation first with ACAS.

ACAS has published statistics for the first six months of this scheme to show how it is working which includes the following figures;

  • 37,000 cases were conciliated in the first six month period.
  • 10% of employees refused to take conciliation any further.
  • 10% of employers have declined to participate when contacted by ACAS.
  • Figures suggest that 18% of conciliations resulted in a settlement.
  • Of the cases that did not settle through ACAS over two thirds did not progress to a Tribunal Claim (there are some question marks concerning this figure as employees will have at least a month before the conclusion of conciliation to bring a claim and accordingly may have done so after the survey period).


Employment Tribunals and Wikipedia

The recent Employment Appeal Tribunal case of East of England Ambulance Service v Sanders held that an Employment Tribunal should not conduct its own enquiries on evidence not volunteered by either party.

In this particular case an Employment Tribunal had researched an issue on disability on Wikipedia concerning prescription levels for depression and proceeded to ask questions on this issue.

The case was resubmitted to a fresh Employment Tribunal with the EAT advising normal Employment Tribunals that “in assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do)“.


Restrictive Covenants

The importance of carefully drafting restrictive covenants in Employment Contracts was emphasised in the recent Court of Appeal case of Prophet PLC v Huggett.

Mr Huggett was a sales manager for Prophet, a software developer. His Contract of Employment contained a non competition covenant which precluded employment “in any area and in connection with any products” with which he was involved with whilst employed by Prophet.

In the previous hearing of the case in the High Court it was held that the initial reading of this term provided Prophet with no protection as its competitors would not be selling Prophet’s products which were the only products Mr Huggett would have been involved with whilst employed by them. However the High Court proceeded to infer that the true intention of Prophet at the time of entering the covenant was to extend the restrictive covenant to cover similar or competing products, not simply the products developed by Prophet.

The Court of Appeal (unanimously) allowed Mr Huggett’s appeal and refused to extend the wording of the restrictive covenant to include similar or competing products. The Court emphasised the importance of giving careful thought to the intention of the parties when drafting a non competition restrictive covenant.


19 January 2015

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