The year so far

Tribunal Decisions Now Online Since February, all employment tribunal decisions are going to be uploaded to a government website. Previously, anyone wanting to browse through tribunal judgments had to go to tribunal offices or pay a fee to order a specific judgment. The new website allows all visitors to search the database by name, date, judge, jurisdiction code or free text. The online database increases access to justice but creates a high risk of reputational damage for businesses. Judgments usually contain a large amount of information about the working practices of the company and can be critical of these, especially when the employer loses the tribunal. Future job applicants can search against prospective employers to see their tribunal history when deciding whether to apply or accept a job. Current employees can also access the database and search against their employer; this could lead to knock on claims. It is now more important than ever for employers to perfect their employment practices to ensure they’re not facing a tribunal. Commission and holiday pay: the end of the road? The Supreme Court has refused the appeal by British Gas against the Court of Appeal’s decision that holiday pay calculations should take commission payments in to account. The Court of Appeal decision is binding on lower courts so a worker who makes a similar claim for commission being included in holiday pay is likely to be successful. Employers may now need to consider including commission in holiday pay for affected workers but there are still unanswered questions from this case. The type of commission involved was “individual results based commission” which had to be included in the first four weeks of the worker’s annual leave. Including commission is likely to require an average of pay. This is usually 12 weeks but this may not be sufficient to capture infrequent payments of commission. A gap of 3 months or more since the last period of annual leave, made up of the first four weeks of leave, will break the chain of the employee being entitled to make a claim. Specific advice on each circumstance is necessary to ensure employers are getting this area right. Sexist dress codes Following a petition set up by an agency worker who was sent home from work because she didn’t want to wear high heels, as required by her employer, the Petitions and Women and Equalities Committees carried out an inquiry in to discriminatory dress codes. They heard evidence from women who were told by employers to chemically straighten their hair, wear high heels, dye their hair blonde and frequently re-apply make-up. The report called for the government to review the law and make it more effective. Dress codes which treat one gender less favourably than the other are already illegal under the Equality Act 2010. There are also disability discrimination issues arising from requiring females to wear high heels as those with medical conditions which make it painful to wear heels all day will be unfavourably treated by this requirement. Article 50 triggered On Wednesday 29th March, Prime Minister Theresa May triggered Article 50 signalling the start of the Brexit negotiation process. The start of the process does not change any employment law at this stage but kicks off the two year negotiating period; at the end of which there should be a plan in place. The most pressing issue for business is the immigration status of EU nationals currently working in the UK and EU nationals entering the UK for work after the exit. This is likely to be one of the first agenda points for negotiation, although the interim uncertainty could lead to employers in certain sectors struggling to find enough workers to meet their needs.  

Suggested Resources