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