Holiday Pay to Include Commission ?

In a case before the European Court Of Justice (ECJ), Lock v British Gas Trading & Others, the Advocate-General has given an opinion that commission should be included in statutory holiday pay. 

The opinion of the Advocate-General is only guidance for the ECJ and is not binding, and the full decision of the ECJ will be given in due course.

The opinion stresses the importance placed on holiday for an employee or worker "to rest and enjoy a period of relaxation and leisure" and that holiday pay should not be adversely affected to prevent an employee from taking their holiday.

If the ECJ does follow the Advocate-General's opinion, this could add a significant cost for employers, particularly where commission forms a significant part of an employee's income, and employers should consider looking at their current commission structures. 

There may also be significant claims for back pay in relation to holday pay that should have included commission if the ECJ follows the Advocate-General's opinion.

06 December 2013

Factors to Take Into Account When Dismissing Employee On Grounds Of Ill Health

In the recent case in the Scottish Court Of Session of BS v Dundee City Council, the Court set out factors for an Employment Tribunal to consider when deciding an unfair dismissal case where an employer has dismissed an employee on the grounds of ill-health. Ill health is a potentially fair reason for dismissal under the Employment Rights Act 1996.

The Court said that relevant factors to consider are:

1. Whether the employer can be expected to be expected to wait any longer.

2. The employer should consult with the employee regarding their condition and when they expect to return.

3. To discover the employee's condition and likely prognosis.

The Claimant had worked for the employer for 35 years. The Court Of Session said that length of service was only a relevant factor if, during that service, the employee had shown that the employee was likely to return to work as soon as he was able.

Restrictive Covenant of 1 year non-dealing and non-solicitation post-termination of employment was enforceable

In the recent case in the High Court of Croesus Financial Services Ltd v Bradshaw, the High Court held that Croesus was entitled to rely on a restraint of trade clause in a contract of employment that prevented Mr Bradshaw from soliciting or dealing with clients of Croesus with whom he had had personal contact, for a period of 12 months following the termination of his employment.

Cases regarding restrictive covenants turn very much on their facts, the position of the employee within the organisation, the duration, length and geographical scope of the restraint, and whether the clause protects the legitimate business interests of the employer.

As in this case, injunctions may be granted, but the case is also interesting in that at the end of the High Court judgment it demonstrates the difficulties in quantifying the losses incurred by breaches of restrictive covenants / restraint of trade clauses.


02 December 2013

Effective Date Of Termination was when employee told of dismissal by their solicitor

The Effective Date Of Termination is relevant in unfair dismissal claims as the Employment Tribunal has to receive the Claim Form within 3 months of the EDT. 

Where an employee has their employment terminated by letter, the "effective date of termination" (EDT) is the date that the Claimant has a reasonable opportunity to read the dismissal letter.

In the recent case of Robinson v Fairhill Medical Practice, the Claimant's solicitor received an email from the Respondent employer on 06 July 2011 stating that the Claimant's employment was terminated on that day.

The solicitor informed the Claimant on 07 July 2011 but the Claimant did not receive and read the letter from the employer until 08 July 2011. The Employment Appeal Tribunal (EAT) decided that 07 July 2011 was the "effective date of termination" (EDT). 

The reason the EDT is relevant is that Claimants have to bring an unfair dismissal claim in the Employment Tribunal within 3 months of the EDT. As the claim form was received by the Tribunal on 08 October 2011 instead of 06 October, the unfair dismissal claim was rejected. 

The EAT did however allow the Claimant to continue with her claim for disability discrimination on the basis that it was "just and equitable" for her to do so.

Rejection Of Employment Tribunal Claims and Responses

From 29 July 2013, there are new "sift" procedures where the Employment Tribunal has greater powers to reject a Claim or Response to a claim if they do not comply with the new Rules.

This makes it more important than ever before that the Claim or Response are properly drafted before they are submitted to the Employment Tribunal.

Some reasons why a Claim or Response can be rejected are:

• If the Claim or Response is not in the correct form
• If the Claim isn't accompanied by a fee or fee remission application
• If the Claim cannot sensibly be responded to
• If the Response does not state whether the employer wishes to resist any part of the Claim
• If the Claim or Response is late

Although it may be possible to resubmit the Claim or Response after it has been rejected, by the time it is resubmitted, it may be out of time.


CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.

Government To Change Court and Tribunal Fee Remission System

The Government is proposing changes in the way that remissions of fees for submitting claims in the Court or Employment Tribunal will be calculated and for the changes to be made later in the year.

Although the proposals have not yet been finalised, they are likely to make it more difficult for claimants to either pay a reduced fee or no fee at all for bringing a claim.

To read the Government's consultation paper and impact assessment, click here>>


CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.

MoJ Issues Employment Tribunal Fees Leaflets

The Ministry Of Justice has now issued leaflets setting out the Employment Tribunal fees that are payable from 29 July 2013 and whether they have to be paid:

Employment Tribunal Fees For Individuals (Form T435)

Employment Tribunal Fees - Do I have To Pay Them (Form T438) - this includes the form to apply for a remission (i.e. whether a claimant has to pay a fee and if so, how much)

If a claim is brought before 29 July 2013, no fee is payable.

There are some interesting points from the leaflets:

• The Hearing Fee is not refundable if the claim is settled before the hearing takes place
• If the Tribunal claim is unsuccessful, the employer can ask the Tribunal to order the Claimant to pay any Tribunal fees the employer has had to pay and vice versa
• If an Issue fee has been paid but the Claimant's circumstances change for the worse in the meantime, the Claimant may not have to pay the Hearing fee
• If an Issue fee was not paid, or a reduced fee was paid because of the Claimant's financial circumstances, if those circumstances improve at the time the Hearing fee is due, then the Hearing fee may be payable.

CONTACT ME

If you want to find out more about the services that I offer, call 01462 418629, or visit my website www.hertsemploymentlaw.co.uk.

Disclaimer
This blog post is intended for information only. It is not intended to amount to legal advice or be relied on in legal proceedings and readers are advised to take specialist legal advice at all times.