Employment Update
- October 2018

Employment law always moves at a fast pace so we have once more summarised some of the most important recent decisions and news:


(1) Holiday Pay – Voluntary Overtime:

The Employment Appeal Tribunal (“EAT”) in Flowers v East of England Ambulance Trust has confirmed that voluntary overtime could fall within the concept of “normal remuneration” when calculating holiday pay entitlement. An assessment of the facts would still be required, to determine whether or not the voluntary overtime was indeed “normal remuneration”, but the EAT also stressed the importance of contractual terms, which in this case did not distinguish between different types of overtime when detailing how holiday pay would be calculated. Employers should therefore give serious consideration to the wording of their contracts of employment.

(2) Zero Hours contracts and Suspension:

In Obi v Rice Shack the EAT held that where a contract of employment did not allow for an employer to suspend without pay, a suspended employee on a zero hour contract was entitled to be paid their average wage during the period of suspension. This was so despite the fact that the employee had obtained paid employment elsewhere during the period of the suspension. The EAT held that finding new employment was not a breach by the employee of her zero hours contract of employment.

(3) National Minimum Wage & Sleep-in Shifts

There have been numerous cases over the years, in the care sector in particular, in relation to what counts as “working time” for the purposes of the National Minimum Wage (“NMW”). In the case of Royal Mencap v Tomlinson-Blake the Court of Appeal held that care workers were not entitled to be paid NMW for the entirety of a sleep-in shift. Rejecting the EAT’s earlier decision, it was found that workers on a sleep-in shift were only “available” for work rather than actually working; as such, the only time that counted for NMW purposes was when the worker was “required” to be awake for the purpose of working. The case is likely to be appealed to the Supreme Court by Unison.

(4) Unfair Dismissal – Gross misconduct

In Quintiles Commercial v Barongo the EAT held that the Employment Rights Act does not state that a dismissal for anything less than gross misconduct is unfair. The matter involved an initial dismissal on gross misconduct grounds which was later reduced to serious misconduct following an appeal. Despite the downgrading, the employer upheld the decision to dismiss due to a breakdown in trust. The first Tribunal held the dismissal was unfair, as a warning should have been given after appeal rather than dismissal; however, the EAT found that the test which should have been applied by the Tribunal was to consider whether the decision to dismiss was within a “band of reasonable responses”. It also stated that the Tribunal should not have substituted its own views as to what the correct decision should have been.

(5) TUPE

The CJEU, in the case of Colino Siguenza v Ayuntamiento de Valladolid, has found that despite a 5 month suspension of the undertakings activities, TUPE still applied. The case involved a school music teacher who was dismissed by a contractor which subsequently ceased its activities at the school in April, until a new contractor took over the school in the September. The new contractor failed to re-engage any of the previous school staff which the original contractor had dismissed. The temporary suspension of activities could not preclude the possibility of a TUPE transfer.

Other news:

Tribunal statistics

Employment Tribunal statistics published by the MoJ for April to June 2018 show that the number of claims being issued at Tribunal continues to grow. In comparison to the same quarter in 2017, there was an increase in single claims lodged of 165%.
The MoJ also released details of the size of compensation awarded by Tribunals, with the average disability discrimination claim award being £30,700, the average religious discrimination claims receiving £5,100 and the average award for unfair dismissal claims being £15,007.


A consultation paper issued by the Law Commission (an advisory body) has sought views on various potential employment law reforms, including (1) extending limitation periods from 3 months to 6 months; (2) removing the £25,000 limit on breach of contract claims; and (3) allowing Employment Judges to sit in civil courts when hearing discrimination issues. The consultation is open until January 2019.

Parental Bereavement (Leave and Pay) Act 2018

The Parental Bereavement (Leave and Pay) Act 2018, which provides a right to 2 weeks of time away from work for employees who have lost a child under 18, received Royal Assent in September. It is anticipated that the Act will come into force in early 2020.

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 which is contained in articles on this website is general information only, and does not constitute legal or other advice. Nexus Solicitors Limited is not responsible for any loss which may arise from the use or reliance on the information on this site. If any topic is of interest to you, please contact us and we will be able to assist and advise you.

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