Giving Too Much Notice Meant Employee lost their Constructive Dismissal Claim

A constructive dismissal occurs where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so by virtue of the employer’s conduct.

Employees can resign either with or without notice, what matters is that they have the right to resign without notice because of the employer’s conduct towards them.

Employees need to be able to show three things to win a constructive dismissal claim:

1. A breach of contract by the employer that is sufficiently serious to justify the employee resigning.
2. The employee must resign in response to that breach of contract.
3. The employee must not delay too long in accepting the breach.

Constructive dismissal claims have always been difficult cases for employees to win. The employee has to prove that the employer was in fundamental breach of contract. It is not enough just to show that they were not treated fairly. Even if they can do that the employee could still lose their claim because they delayed leaving employment. Even though an employee is permitted to give notice on resignation, the fact that they feel able to work their notice period may lead a tribunal to find that the claimant had in fact delayed too long.

In the recent case of Cockram v Air Products plc a senior employee with a three month notice period resigned after a grievance he raised was not upheld. He claimed that this amounted to a breach of his contract entitling him to claim constructive dismissal. Because he did not have any other work lined up he gave 7 months notice to his employer. He lost his case because of that. The Employment Tribunal and EAT found that to give 7 months notice was to delay too long in accepting the breach and the case was thrown out.

Paul Whitfield can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) is a set of rules that work to protect employees when the business they work for is sold or transferred to a new employer.

New TUPE regulations came into force on 31 January 2014 and ACAS have now published some very helpful guidance to help employers and employees better understand what the changes mean and how they may affect their business. The PDF of the ACAS TUPE guide can be found at:

http://www.acas.org.uk/media/pdf/i/h/Handling-TUPE-Transfers-The-Acas-Guide.pdf

The key points to note about TUPE are:

• When a business is sold or transferred the employees assigned to, or employed by that business will automatically transfer with the business and become employed by the new owner of the business.

• Employees will transfer to their new employer on their existing contracts of employment and with all their years of continuous employment protected. Changing the contracts of transferred employees can be very difficult and legal advice must be taken at the earliest opportunity.

• The outgoing employer must provide information about the transferring employees to the new employer not less than 28 days before the transfer.

• Employer must inform/consult with the transferring employees before the transfer and if there is no trade union this may require the election of employee representatives.  From 31 July 2014, micro businesses (those with fewer than 10 employees overall) are not required to elect representatives to inform and consult where there are no existing recognised trade unions or elected employee representatives. However, they must still inform and consult directly with each individual employee regarding the transfer.

• If an employee is dismissed either before or after a transfer and the sole or principal reason for the dismissal is the transfer, it will be automatically unfair.

TUPE is a complex area of law and anyone thinking about purchasing or taking over a business with employees really needs to take legal advice about the employees they may inherit at the earliest possible stage.

Employees being transferred can find this a very unsettling and worrying time and may also be best taking legal advice about their position if they feel they are not being treated correctly.

Paul Whitfield can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

Update 14/05/2015:

This case has now been referred back to the Employment Tribunal and British Gas has now appealed that again. It is unlikely to be before the end of 2015 when that appeal is heard. The Employment Tribunal it did not consider reference periods and how to quantify a claim for the commission element of holiday pay. The principle that commission must be included in holiday pay is established law now, the still open questions is how to quantify it.

Our best advise at the moment is that in cases where a worker has no normal working hours, or has normal working hours but their pay varies according to amount of work done or the time of work employers should use an average of the last 12 working weeks to calculate how much holiday pay should be paid. If your ways of working mean that 12 weeks would not be representative, such an a system where all commission is paid annually, then 12 weeks may not be the appropriate reference period. In any case we advise all employers to take legal advice on this as soon as possible. Fox Whitfield are already dealing with multiple claims where employers have not changed their policies and are facing claims.

Paul can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

In a new twist on the law relating to holiday rights the European Court of Justice (ECJ) has held that holiday pay should take into account commission payments.

Currently the UK law, the Working Time Regulations, make it clear that employees are entitled to holiday pay based on their basic salary alone. This case suggests that is now incorrect as it is not compatible with European Law.

In this example an employee’s remuneration was made up of basic salary and commission. The commission was about 60% of the total remuneration. The ECJ said that the commission payments were directly linked to the performance of his work under his contract of employment. Therefore, the commission should be taken into account in the calculation of his statutory holiday pay.

This case is now being referred back to the Employment Tribunal which will need to consider how to interpret the Working Time Regulations following this decision. It is likely that they will do so in a way that will have far reaching implications for many businesses and their employees.

One possibility is that the Tribunal will say that statutory holiday pay should be based upon 12 month average normal pay. That would ensure that any commission payments paid over a year would be included. Another possibility is that they will use a shorter reference period of 12 weeks. This could mean sales forces trying to take their holidays immediately after busy periods to maximise their holiday pay. We shall have to wait and see how the details of this develop.

There are two other cases being heard in the EAT during the summer of 2014 looking at the extent to which overtime payments should also be included in the calculation of statutory holiday pay.

So what should employers do now?

1) Do nothing. Wait and see how these cases develop the law as they take their time going though the Tribunal and appeal systems. It may be that the UK courts limit the effect of the ECJ  decision.

2) Assume the UK law is going to have to change to comply with the European decisions.  Take the business decision to look at changing your holiday pay and commission rules and policies now. The risk of this is that we have yet to see how the UK courts will apply the law and you could end up having to change your rules twice.

So far, most employers seem to be waiting to see what happens next before making any changes.

We will update you as things become clearer, or more muddy.

Paul can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

Between 12 June and 13 July 2014 employers will face a number of issues relating to the World Cup games from requests for annual leave, to suspicious sickness absences and high levels of internet usage during matches.

As this World Cup is being held in Brazil most matches will kick off between 5:00pm and 11:00pm.

ACAS have published some guidance to employers. This urges employers to be as flexible as possible for this period of time to try and maintain a productive and motivated workforce. They suggest that, in advance of the World Cup or other similar events, that the employers make their position clear about issues such as booking time off, watching TV at work, sickness absences and internet usage.

Employers should consider :-

Annual Leave Requests

Employers should have a policy that states how much notice is needed to book annual leave and that requests are always subject to the employer’s agreement. This should prevent too many employees asking for the same time off or doing so at the last minute. ACAS suggests that employers might want to operate this policy with more flexibility during the World Cup as it is for a short period of time. However that is entirely down to the business and its requirements for employees work.

Given the likely kick off times in this World Cup most games will be in the later afternoon and evening so it might be more sensible to offer a more flexible working day if a large number of employees want to take the same days off.

Sickness Absence

Employees taking days off sick to watch a match or the day after a match due to a hangover can cause serious problems for an employer. Employees should be reminded of the company policy on unauthorised absences and absence levels should be carefully monitored during periods like this. Back to work meetings with any employees taking sick leave can be an effective deterrent to this sort of absence.

Alcohol at Work

It is useful to remind your employees what your policy on being under the influence of alcohol at work is and if necessary remind employees that they may be subjected to disciplinary action.

If you plan to show matches in the workplace and prove or permit alcohol to be consumed it is also worth having a clear policy about the expected level of behaviour. Fox Whitfield can provide employers with these sorts of policies.

Internet Usage

Games that take place during working hours are very likely to coincide with a big increase in the use of twitter, facebook and sites streaming matches and commentary. Again it will be worth reminding employees about your policy on the use of the internet during working.

Paul Whitfield can be contacted on 0161 2831276 or paulw@foxwhitfild.com

www.foxwhitfield.com

Employment Law Solicitors – Head Office based in Manchester with offices located throughout the United Kingdom.

A recent case in the High Court looked at the legal issues of LinkedIn accounts operated by employees.

In Whitmar Publications Ltd v Gamage three employees set up a competing business during their employment with Whitmar Publications. The ex-employees were accused of a long list of unlawful acts such as trying to poach and using confidential information.

One of the ex-employees had managed four LinkedIn groups on behalf of Whitmar. Those groups appeared to have been used after that employees employment ended to source email addresses for the new competing business. The Employee also refused to provide Whitmar with the user name, password or any other access details for the groups.

The High Court also found that this employee’s duties as an employee included responsibility for dealing with the LinkedIn accounts, which were operated for Whitmar’s benefit to promote its business. The Judge required the ex-employees to give Whitmar exclusive access management and control of the LinkedIn groups. It also ordered them not to access or do anything that would inhibit or prevent Whitmar from accessing the LinkedIn groups. This was despite the fact that LinkedIn’s terms state that ownership of a LinkedIn account is personal to the account holder.

This new case only scratches the surface of the many unanswered questions posed by employees’ use of LinkedIn and other social media sites. If an employee uses a personal LinkedIn account for both personal and business use, or if an employee starts a new role with an existing LinkedIn accounts or groups already in place then the position remains unclear. The key question for the Court in this case was if the account was operated for the benefit of the new employer.

Employers who are worried about this should put in place policies that set out who owns business contacts on social media made by employees during their employment. Some employers require their employees to set up a separate LinkedIn account for all business activities and have a clear contractual requirement they delete any of the employer’s business contacts from a personal account when their employment ends.

Employers should also consider if it is appropriate to also have contractual provisions that seek to prevent employees from dealing with or soliciting business from the employer’s customers after their employment ends.