Employment Update - January 2019

Employment law always moves at a fast pace so we’ve summarised some of the most important recent decisions and news.

Cases

(1) Holiday Pay & Parental Leave:

In the case of Tribunalul Botosani v Dicu the European Court of Justice found that annual leave did not accrue during parental leave, as the contract of employment was suspended. The CJEU found that Ms Dicu’s employer was therefore entitled to withhold 5 days of annual leave as a result of Ms Dicu not accruing her full annual entitlement due to taking a period of parental leave.

(2) Discrimination – the cake debate:

In the widely publicised case of Lee v Ashers Baking Company Ltd and Others the Supreme Court found that it was not directly discriminatory for a Christian baker to refuse to bake a cake containing a message supportive of gay marriage. Ashers refused to bake the cake due to their religious beliefs, resulting in Mr Lee successfully bringing a discrimination claim through the Northern Irish courts, before the Supreme Court overruled those decisions. The Supreme Court found that the refusal was not because of Mr Lee’s sexual orientation, that being irrelevant to the decision taken by Ashers, and as such it was not direct discrimination. The Supreme Court also relied upon Ashers’ rights under Articles 9 and 10 of the European Convention on Human Rights, which include an entitlement not to be forced to express a political opinion in which you do not believe.

(3) Disability Discrimination:

In Mutombo-Mpania v Angard Staffing Solutions Ltd, which included a claim for disability discrimination logged by Mr. Mpania, both the Employment Tribunal and the Employment Appeal Tribunal held that Angard had no knowledge of and could not reasonably have been expected to have knowledge of Mr. Mpania’s alleged disability in circumstances where he himself had previously informed the company that he was not disabled. The Tribunals found that mere reference to a “health condition” and Mr. Mpania’s absences were not sufficient to satisfy them that Angard had/should reasonably have had knowledge of a disability. This was especially so given Mr. Mpania had completed an occupational health form in which he omitted to inform the company of his condition (essential hypertension). While the case shows that where there are vague references to health issues, employers are not automatically on notice of an employee’s disability, care should still be taken when investigating the reason for an employee’s absence and the employer should take all reasonable steps to establish the employee’s disability status.

(4) Whistleblowing and Personal Liability:

According to the Court of Appeal in Timis v Osipov, an individual can be liable for a whistleblowing dismissal, along with the employer. Mr. Osipov’s dismissal following a protected disclosure was recommended by two directors of his employer. The Court of Appeal held that upon the company becoming insolvent, Mr. Osipov could proceed against the directors personally. The basis for the decision was the fact that the conduct of the two directors had subjected Mr. Osipov to a detriment contrary to the relevant whistleblowing legislation, which prevents an employee from suffering a detriment at the hands of workers working for the same employer, as well as by the employer itself. Timis and Sage were liable for a detriment and for the losses flowing from the dismissal which they had recommended. 

Other news

National Living Wage (“NLW”)

The latest Budget confirmed that the expected increases in the NLW which will take effect from April 2019. The new hourly rates will be as follows:

  • Age 25 and over                £8.21
  • Age 21-24                           £7.70
  • Age 18-20                           £6.15
  • Age under 18                     £4.35
  • Apprentice                         £3.90

Tribunal fees

The Ministry of Justice has signalled that it was considering the reintroduction of fees for employment tribunal claims.  Its view is that the Supreme Court did not outlaw the concept of fees, and that whilst their reintroduction was not imminent, it could foresee a fee system that was progressive and did not charge those who could not afford to pay.  Since the Tribunal fee system was abolished, there has been a sharp rise in the number of claims lodged at the Employment Tribunal with statistics showing that the number of single claims lodged has more than doubled when compared with the same period in 2017.

For more information on any of the developments above or indeed any employment related matters please contact Louise Carr at lca@nexussolicitors.co.uk or Craig McCracken at cmc@nexussolicitors.co.uk or call 0161 819 4900.

Any and all information on this website is general information and is not legal or other advice. Nexus Solicitors Limited is not responsible for any loss which may arise from relying on the information on this site.

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