AT A GLANCE, KEY DEVELOPMENTS THIS MONTH
1. Holiday pay includes overtime that has not been guaranteed
2. Dismissal of TV journalist breached human rights law
3. Employer did not discriminate by not offering alternative role to employee on maternity leave
4. Beauty consultant was not an employee
5. Paranoid schizophrenic unfairly dismissed for sexual assault
6. ET committed procedural error by carrying out its own internet search
7. Time limit for harassment claim where harasser had not transferred under TUPE
8. Maximum recruitment age for police officers breaches age discrimination law
9. Time spent attending union meetings was not ‘working time’
10. Advocate General’s Opinion that bonus cap is valid
A. UK Living Wage
B. Gender pay gap
C. Blacklisting of whistleblowers
D. Ban to prevent employment agencies and employment businesses from advertising GB vacancies in other EEA countries
E. Sports Direct “zero hours” settlement
F. ACAS early conciliation figures
Bear Scotland Ltd and others v Fulton and others  UKEAT/0047/13
In an eagerly awaited and much heralded decision, the EAT has held in Bear Scotland Ltd and others v Fulton and others that Article 7 of the Working Time Directive can be interpreted so that payments for overtime, which the employees in two appeals before it were required to work (although their employer was not obliged to offer), is part of normal remuneration and therefore to be included as such in the calculation of pay for holiday leave taken under regulation 13 of the Working Time Regulations 1998. The WT Regulations which refer to the definition of a week’s pay in the Employment Rights Act (S221 and s222 ) could be interpreted so as to conform to that interpretation.
Matúz v Hungary  ECHR 1112
A state TV journalist in Hungary was dismissed following the publication of his book, which criticised censorship of a cultural programme. The introduction of his book called on readers to decide whether they regarded documents he had published as pieces of evidence of censorship or as a supervisor’s valid instructions to his colleagues. In Matúz v Hungary the European Court of Human Rights (ECtHR) held that the dismissal, for breach of confidentiality, unlawfully interfered with his right to freedom of expression under Article 10 of the European Convention of Human Rights.
Sefton Borough Council v Wainwright UKEAT/0168/14: Redundancy
Under Regulation 10 of the Maternity and Parental Leave Regulations 1999 an employee on maternity leave has the right to be offered a suitable alternative vacancy where a redundancy situation occurs. The EAT in Sefton BC v Wainwright have held that where there is a breach of Regulation 10, this does not automatically mean that there is direct discrimination under Section 18 Equality Act 2010 (discrimination on grounds of maternity or pregnancy).
Halawi v WDFG UK Ltd (t/a) World Duty Free)  EWCA Civ 1387
In Halawi v WDFG the issue on appeal was whether Ms Halawi, who provided her services through an employee-controlled company to a service company, was an employee. She sought to establish that she was an employee, not of either of those companies, or the client of the service company for whom the service company provided her services but of WDF, which managed the workplace for the client for whom her services were engaged. In effect, WDF provided retail space where the beauty products were sold. She brought her claim under the Equality Act 2010 when her airside pass was withdrawn, alleging that she had been unfairly discriminated against. To pursue her claim she had to show she was an employee under section 83 Equality Act 2010.
Burdett v Aviva Employment Services Ltd
In Burdett v Aviva, Mr Burdett, a paranoid schizophrenic, sexually attacked female colleagues after he had stopped taking his medication. His employer, Aviva dismissed him for gross misconduct. A tribunal found that it was a fair dismissal but did not engage with the issue of blameworthiness: whether Mr Burdett had wilfully or grossly negligently committed the acts (See Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09). On the facts in this case, this was an error of law.
East of England Ambulance Service NHS Trust v Sanders
In East of England Ambulance Service v Sanders an Employment Tribunal heard evidence and submissions on a preliminary issue of disability, and retired to consider its decision. It then researched the Internet, without prior reference to the parties, to ask a question about whether there had been no obvious prior issue between the parties. It then told the parties what it had found out.
Vernon v Azure Support Services Ltd and others – Enforcement, Employment Tribunals etc.
The EAT had to consider what the time limit was for an harassment claim where there had been a TUPE transfer in Vernon v Azure Support Services Ltd. Ms Vernon was employed by Port Vale FC and her employment transferred under TUPE to Azure. Mr Bedding, the third respondent, was employed by Port Vale and harassed Ms Vernon before and after the transfer.
Perez v Ayuntamiento de Oviedo C-416/13
The ECJ has ruled in Perez v Ayuntamiento that Spanish domestic legislation was in breach of the Equal Treatment Framework Directive. In this case, a law which required applicants to be police officers to be not older than 30 years of age was held to be direct discrimination on grounds of age and was not a genuine occupational requirement not could it be objectively justified.
Edwards and another v Encirc ET/2412489/13
An employment tribunal has held in Edwards v Encirc that for the purposes of calculating working time under Regulation 2(1) of the Working Time Regulations 1998, time spent on trade union duties and activities was not ‘working time’. Regulation 2(1) requires that time spent must be:
- Any period during which the employee is working, at his employer’s disposal and carrying out his activity or duties, or
- Any additional period which is to be treated as working time under a relevant agreement.
Regulation 10 WTR provides that an employee shall be entitled to daily rest of 11 hours in every 24 hour period.