Practical Law

As the Summer comes to a close, the promised first data from the audit of racial disparities in public services is still awaited. This month, a survey conducted by the TUC has suggested that white workers earn an average of 8.3% more than their black counterparts despite holding the same educational qualifications and the Equality and Human Rights Commission published a strategy on gender, ethnicity and disability pay gaps. The strategy includes a recommendation to extend mandatory gender pay gap reporting to ethnicity and disability.

Following last month’s momentous Supreme Court decision on employment tribunal fees, we have published a new Practice note, Q&A: Practical issues arising from the abolition of fees in the employment tribunal. The note deals with frequently asked questions in response to the decision.

Working time and time off. Advocate General Sharpston has given an opinion on whether time spent on “stand-by” duty is working time. It is for member states to determine whether the quality of time spent on stand-by duty is undermined to such a degree by any restrictions imposed by the employer that it should be classified as working time.

The EAT has clarified that voluntary overtime, standby allowances and call-out payments count towards holiday pay if sufficiently regular. This decision follows the now well-established direction of travel for holiday pay cases, highlighting that voluntary elements of work are in principle to be treated no differently, for holiday pay purposes, than compulsory non-guaranteed overtime dealt with in Bear Scotland. However, some uncertainty does remain. The question of whether a payment is “normal” is a question of fact and degree for a tribunal, which means employers will need to take a view on how they treat borderline cases. Continue reading →

Employment tribunals. In a momentous decision, the Supreme Court declared that employment tribunal and EAT fees are unlawful under domestic and EU Law. The Court quashed the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893) on the basis that it prevents access to justice. The effect is that all fees paid since 29 July 2013 will be reimbursed by the government and fees are no longer payable for future claims. The government has accepted the ruling and is putting in place systems for reimbursing all fees paid to date.

In two contrasting decisions, the EAT considered whether a difference in the respondent’s name on the EC certificate and the claim form was a “minor error” with the result that the claim could proceed. The EAT upheld an employment tribunal’s decision to reject an ET1 where the respondent’s name substantially differed to that on the EC certificate.  However, in a case with essentially the same facts, a differently constituted EAT held that incorrectly naming the respondent on the EC certificate was a “minor error” which should have been overlooked.

Continue reading →