Articles by ‘Gemma Ospedale’

In Peninsula Business Services Limited v Donaldson an Employment Tribunal decided that it was discriminatory for an employer to make it a condition of entry into its childcare voucher scheme that the vouchers, provided through salary sacrifice, would be suspended during maternity leave.

In Pnaiser v NHS England and another the EAT has given guidance on the correct approach to a Section 15 Equality Act claim for discrimination arising in consequence of a disability. It highlights that the duty to make reasonable adjustments is only one part of the protection given to disabled employees. The Claimant’s disability required her to take a significant amount of sickness absence from her post at the Coventry Council. When she was made redundant she was offered a position with NHS England subject to satisfactory references. However the offer was withdrawn when her former, and potential new, manager spoke, during which her sickness absence was highlighted. She brought a claim under Section 15 for discrimination arising in consequence of disability i.e. that the mention of her sickness absence, which was due to a disability, was the reason why the offer was withdrawn.

There will be no exemption for charities from the Government’s apprenticeship levy scheme, it was revealed last week.

In Banaszczyk v Booker the EAT has overturned a Tribunal decision that manual lifting of items weighing up to 25 kilograms at work was not a normal day to day activity.

In Mustafa and another v Trek Highways Services Limited and others, the EAT has allowed an appeal against a Tribunal’s decision that there was no business transfer or service provision change under TUPE where a subcontractor’s employees had been laid off as a result of a commercial dispute with the main contractor (a highway maintenance company) shortly before the main contract expired and the services transferred to a new contractor. The subcontract terminated by consent 12 days before the new contract was due to start and both the main contractor and the new one refused to take on the subcontractor’s employees on the grounds that TUPE did not apply. This decision has been overturned and the case remitted back to the Employment Tribunal.

In Stimpson v CitiBank the Employment Tribunal has held that the employer’s decision to summarily dismiss a foreign exchange trader for disclosing confidential client information to traders from different banks in an online chat room was unfair and wrongful.

In Craig v Bob Lindfield and Son Limited the EAT has held that there is no implied term of reasonableness in a contractual provision which allows employees to be laid off or put on to short term working for an indefinite period without pay. The EAT considered two conflicting EAT decisions and found that the Tribunal had correctly followed the later decision of Kenneth McRae and Co Limited v Dawson. This meant that the employee, who resigned after being laid off for about 5 weeks without pay, had not been constructively unfairly dismissed. There had been a genuine downturn in work which had led to the employer operating the contractual lay-off clause and the employer had properly followed the statutory scheme under which a redundancy payment does not have to be paid if there is a reasonable expectation that further work will become available within 4 weeks.

The holiday pay case of Lock v British Gas, which has gone all the way to the ECJ and back to the EAT, has finally been decided in the EAT. The ECJ had held that Mr Lock’s holiday pay should be calculated by using basic salary and his results-based commission, and not just his basic salary. The EAT has held that the domestic legislation can be interpreted in a way which conforms to the EU law on holiday pay and so the appeal by British Gas was dismissed.

A complaint was made to the Pensions Ombudsmen by Mrs Sarah Ascough, the widow of a member of the LGPS who died in 2014. The member had applied for and been awarded an actuarially reduced ill health early retirement (IHER) pension from deferred status under regulation 31 of the Local Government Pension Scheme (Benefits Membership and Contributions) Regulations 2007, 4 months after he was made redundant, rather than an enhanced IHER pension under Regulation 20 while he was still employed. The outcome was that the Ombudsman considered that the employing authority which operated the LGPS had no duty to advise the member of the option of applying for an enhanced ill health early retirement pension from active status when he was made redundant in 2013 although the employing authority knew he had taken sick leave in 2010 for a brain tumour. The Ombudsman held that, even if the member had informed his employer about his deteriorating health whilst still employed, which he did not do, unless he had applied for an ill health pension his employer was under no duty to advise him of the option of taking ill health retirement. The Ombudsman also held that there was no evidence that the local council, his employer, had misled the member into believing that his pension would be the same under either regulation.

In John-Charles v NHS Business Services Authority the EAT has held that it was not unreasonable for someone making a decision on a disciplinary hearing to take account of an existing warning when deciding to dismiss the employee for misconduct even though the warning was subject to an outstanding appeal. A long time had passed since the warning was issued and the Tribunal was entitled to conclude that the decision-maker’s belief that the employee was not pursing his appeal against the warning was a reasonable one. Nonetheless the decision-maker had failed to inform the employee that she was minded to dismiss only when she learned of the warning, and should have given him an opportunity to make representations on this point which, as a result, amounted to a breach of natural justice rendering the dismissal unfair.

Employers will be digging into their pockets again following today’s introduction of the National Living Wage for workers over 25, writes Employment Partner Gemma Ospedale.   Some 1.3 million full and part time workers will benefit from the National Living Wage which is currently set at £7.20 per hour.  Food and Fashion retailers and the hospitality sector will be the hardest hit.  Some business leaders have condemned the compulsory increase in wages, claiming that it will lead to significant job cuts.   The National Living Wage sits alongside the National Minimum Wage, and represents a top up for workers over 25.  A new team of compliance officers in HMRC will investigate the most serious cases of employers not paying the National Minimum Wage and National Living Wage.  The team will have the power to use all available sanctions, including penalties, prosecutions and naming and shaming the most exploitative employers.  Penalties for non payment of the NLW and NMW are to be doubled.

In 2009, Lord Justice Jackson undertook a Review of Civil Litigation Costs in England and Wales. Amongst these extensive reforms was the eradication of recoverable success fee uplifts and, in their place, the claimant should recover ten percent more by way of general damages.