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Employment Law November Update...

Employment Law November Update

Some recent developments in the employment field are set out in this update

Calculating holiday pay for term time workers

The familiar approach that employers take when calculating the holiday pay for term time/irregular workers is to cap holiday pay at 12.07% of annualised hours. The Court of Appeal has however ruled that the correct approach is that holiday pay should have been based on average earnings over the 12-week period before leave is taken.

Whilst the case gives useful clarity to employers, it is likely to result in some anomalies as it may favour those individuals who do not work throughout the year.  Employers may also receive requests for unpaid holiday back pay.

Menopause at work

Last month on 18 October 2019 was World Menopause Day.  ACAS has issued some useful guidance to help employers manage employees affected by this. Women aged over 50 are the fastest growing group in the workforce but many feel unsupported at work on this issue.  It may lead to increased absence levels or performance concerns. This guide is not a statutory code as such but may still be taken into account by a tribunal.

Does covert monitoring of staff who you suspect are guilty of theft a breach of the Article 8 right to private life

 The ECHR has recently held that this is not a breach. Covert monitoring has to be handled carefully.  Blanket covert monitoring is unlikely to be acceptable but in this particular case, there was a high level of theft taking place, the surveillance was limited to two weeks and the recordings were confined to a small group of individuals.

It will always be important when considering covert monitoring to ensure a fair balance is struck so as not to violate the right to respect for private life. Err on the side of caution.

How much should be offered to cover legal fees under a settlement agreement?

 When an employer offers an employee a settlement agreement, it is relatively standard to offer a sum towards the employee’s legal fees.  This can vary anywhere between £250 plus vat – £500 plus vat.

During a case before the EAT, the judge commented that where an employee has to obtain advice on the merits of a case and the likely award of compensation, an offer of £500 plus vat was unlikely to be a sufficient contribution.

Be careful where you discuss employment issues

It is not a good idea to have a conversation about a delicate employment matter in a pub where you can be overheard. This happened where a discussion between legal advisers was held in public regarding an employee who was complaining about discrimination and was being made redundant.  The advice (which had already been given by email) was being discussed in a public forum but not in an underhand or malicious manner.

The employee tried to argue that legal privilege had been waived (he actually overhead the conversation himself) but the Court of Appeal held that the advice that had been overheard was still legally privileged.

This is, however, a salutary tale about what you should or should not discuss over a drink!

Should an investigator make conclusions in a report

The role of the investigator is to make relevant findings of fact and to avoid reaching any conclusions regarding what an appropriate sanction could be.  To do so risks any subsequent disciplinary action appearing to be prejudged.

In a recent case, an in-house solicitor recommended to the investigator that they remove their evaluative conclusions from their report.  The employee tried to argue that this meant that the subsequent dismissal was unfair.

Their claim failed as the court held that the in-house solicitor had not asked for the report to be altered in any other way or tried to change the findings of fact.

However, it is important for any investigating officer only to conclude whether there is a case to answer and not to express any views on what the appropriate sanction should be.

Employment tribunal statistics

 The figures from April 2018 – March 2019 have been published.  The headlines are that accepted claims have risen to 121,111.  Awards were made in 660 unfair dismissal cases and 110 discrimination cases. The average award for an unfair dismissal case has dropped to £6,243.  In fact, all awards in all areas were down other than age discrimination where the average award increased from £6,184 to £12,365.

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