The Court of Justice of the European Union (CJEU) has considered two cases involving workers on standby and whether the whole of the standby period should be considered working time. The Working Time Directive says that working time is any period where the employee is working, at the employer’s disposal and carrying out their duties. A rest period is any period which is not working time.
The CJEU has previously found that standby time can be working time if the employee must be physically at the workplace (or another place determined by the employer) and able to provide services immediately if required. Another case, Ville de Nivelle v Matzak, said time spent by firefighters on standby at home was working time because they were required to be at home by the employer and to respond within 8 minutes. This put significant constraint on what they could do in terms of social and personal interests during that time.
Employers dread receiving a claim form citing claims which have no teeth and ‘fishing’ for more information from the employer to inform their claims. Often, these claims lack any merit at all. But in some cases, getting hard data to back up anecdotal evidence can be impossible for an employee, especially when it comes to closely guarded information about pay. The EAT has recently looked at a request for supporting data in relation to an equal pay claim. This case sits against the backdrop of extensive mass equal pay litigation in recent times, originally in the public sector, for women in predominantly female roles who claim they do work of equal value to predominantly male roles within a business. Most recently, this mass litigation has moved into the private sector and supermarkets like Asda, Co-op and Sainsbury’s.
Employers must not discriminate against workers on the grounds of their religion or religious beliefs. In Page v NHS Trust Development Authority, the Court of Appeal has looked at whether an employee can be fairly dismissed for the way he expressed his beliefs, rather than the beliefs themselves.
In 2017, in the case of King v Sash Windows, the CJEU established that a worker can carry over unlimited annual leave which they have been prevented from taking because the employer refuses to pay for it. The CJEU said domestic time limits for bringing such a claim – for example, our 3-month time limit to bring an employment claim for unpaid holiday under the Working Time Regulations 1998 or unlawful deduction from wages – should not prevent workers from exercising important EU rights. In Smith v Pimlico Plumbers, the EAT has looked at whether a worker can carry forward holiday that he has taken, but not been paid for, to future years.
The minister for Women and Equalities, Liz Truss, has asked employers to make flexible working a standard option for employees. She believes this step would boost both productivity and morale and improve employment prospects for women – who are twice as likely to work flexibly while they juggle childcare responsibilities – as well as those who don’t live close to big cities. The Government Equalities Office has published a report, ‘Encouraging employers to advertise jobs as flexible’, by the Behavioural Insights Team and the jobs website Indeed. The report said that job applications increase by 30 per cent when flexible working is offered.
The National Living Wage (previously known as the national minimum wage) increased from 1 April to £8.91, the equivalent of more than £345 a year for a full-time employee. For the first time, adults aged 23 and over will qualify for this top pay rate, rather than 25s and over.
Remote working has hidden employees from sight, causing some employers to worry about what their staff are doing during working hours. The Guardian has reported that one of the world’s biggest call centre companies is planning to install surveillance systems to monitor what their staff are doing, whether that’s working, eating or going to the toilet. Teleperformance, which employs 380,000 staff in 34 countries, works for big names in Britain such as the government, NHS Digital, Vodafone, Aviva and the Guardian itself. The article says that there is nothing to suggest that these companies know about this surveillance plan and Teleperformance has now indicated that surveillance will not be rolled out in the UK. Teleperformance has said that the surveillance plans evolved from employees saying that they felt isolated while working at home.
Employers and employees must follow the ACAS Code of Practice in relation to disciplinaries and dismissals. If either party fails to follow the Code, the tribunal can increase or decrease tribunal compensation by up to 25%. In Wardle v Credit Agricole Corporate and Investment Bank, the Court of Appeal said that a tribunal should only fix the rate of uplift once it has considered how much the uplift would equate to financially, to ensure it isn’t disproportionate.
An Employment Tribunal can ‘reconsider’ any judgment where it is necessary in the interests of justice. A tribunal can do this of its own initiative, at the request of the Employment Appeal Tribunal or if one of the parties makes an application for a reconsideration within 14 days of a judgment. The Employment Appeal Tribunal has recently looked at a case where an employer asked a judge to reconsider a case ‘of its own initiative’ in circumstances where they were out of time to make the application themselves.
One of the key differences between direct and indirect discrimination is that a claim for indirect discrimination can be defeated if the employer can show that the provision criterion or practice under challenge is a ‘proportionate means of achieving a legitimate aim’. The circumstances in which this defence of justification will succeed have been the subject of many years of case law. One principle that has emerged is that an employer cannot simply rely on cost savings as a legitimate aim – although it has generally been accepted that cost can be counted as one among several factors – a so called ‘costs plus’ approach.
A redundancy is a dismissal as a result of a workplace closing down or the employer needing fewer employees to do work of a particular kind. In Berkeley Catering Ltd v Jackson the question was whether the reason that an employer needed fewer employees made a difference to whether or not there was a redundancy situation.
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