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The interesting (and, let’s face it, sometimes infuriating) thing about employment law is, it changes more frequently than the weather.

This week’s surprise is that despite domestic law saying something different, the Employment Appeal Tribunal has now decided that non-guaranteed overtime must be counted in the calculation of minimum statutory holiday pay under the Working Time Directive.

Members of the trade union Unite have been successful in the EAT in arguing that the Working Time Directive requires compulsory but non-guaranteed overtime to be taken into account in the calculation of holiday pay, despite domestic law providing that only contractual and guaranteed overtime should be factored into the calculation.

The EAT thought that Article 7 of the Working Time Directive meant that all normal remuneration needed to be included and that this meant regular overtime worked even if not guaranteed.

The EAT further held that the outstanding amounts could potentially be claimed as a series of unlawful deductions from wages, but that deductions made more than three months apart would not be a series of deductions due to the fact that there is a three month time limit for each breach. This reasoning isn’t wholly convincing given the wording of the legislation and it will be interesting to see what is said in the appeal that will inevitably follow this decision.

In the meantime, if you are an employer or an employee needing help with questions about holiday pay and overtime, contact Alison, Paul, Madeleine or Claire at Workwise Legal.

Claims are down, but the need for good quality HR support remains

http://www.dreamstime.com/royalty-free-stock-photos-sledgehammer-to-crack-nuts-image4977238

Talk about a sledgehammer cracking a nut. Employment lawyers were yesterday pondering the news that individual employment tribunal claims had fallen by 63% in the latest reporting period. The drop must be attributed to the new punishing fees regime which sees employees required to fork out up to £1200 to bring an unfair dismissal claim to hearing, even if the claim itself is only worth a few thousand. Even those with bang-to-rights claims on unpaid wages and holiday entitlements are likely to be discouraged from pursuing their genuine entitlements when they have to pay £510 for the privilege of doing so.

So can employers simply breathe a sigh of relief and take the legal advisers off speed dial? The answer is no for these reasons:

1.Productive happy workplaces need to be fair. Rights to claim may come and go, but workplace tensions and disputes will be around forever, causing loss of productivity among staff and major management headaches. Working with employers “upstream” on HR issues over the last year, I have been struck by how rarely “potential tribunal claim” is the primary reason for wanting advice on how to address an issue. It’s nearly always about getting an issue resolved so everyone can get back to work.

2. Many of the claims that have gone were not the ones that employers had to worry about. Weak unfair dismissal claims were the bane of the previous system. Individuals with good, valuable claims where employees are represented by solicitors, will continue to pursue claims. And the very expensive discrimination and whistleblowing claims often arise out of a management culture of doing nothing to address workplace behaviours when they arise.

3. Employers will now face penalties where they breach employees’ minimum statutory rights.

We reckon the need for good, early employment law advice is as pressing as ever.

 

 

Early conciliation implemented in 2014

Early conciliation implemented in 2014

The most significant change to employment law this year will be the early conciliation process, which has been introduced to require claimants to route their employment dispute through ACAS, prior to making a claim to an Employment Tribunal. The hope is that more claims will be resolved at an early stage, and that more hopeless claims will be filtered out.