Employment Highlights April 2018

The employment highlights from April focus on: notices of termination and when they are deemed to have been received; referencing and payment of shared parental leave.

This month, the EAT has handed down several notable decisions, clarifying that provisions to extend time to present a claim after participation in early conciliation do not provide for alternative limitation periods, and confirming that the failure to pay a male employee enhanced shared parental pay, in circumstances where it paid enhanced pay to women on maternity leave, was not direct sex discrimination. It remains to be seen whether the EAT will follow the same line of reasoning in Hextall v Chief Constable of Leicestershire Police ET/2601223/15, a case involving similar facts which is expected to be handed down shortly.

The Supreme Court has held that in cases where a contract is silent on the issue, a notice of termination takes effect at the point it comes to the employee’s attention and they have read it or had reasonable opportunity to do so. The Supreme

Court has also handed down a landmark decision on the scope of Wrotham Park damages (now renamed “negotiating damages” by the Supreme Court), which means that such damages will not normally be awarded for breaches of typical post-employment restrictive covenants (including breaches of non-compete or non-solicitation clauses in the context of a sale of a business). Rather, negotiating damages will sometimes be appropriate in cases concerned with the use of land, intellectual property or confidential information.

The Court of Appeal has held that an employer will be liable for failure to make reasonable adjustments at the point where it is reasonable for them to take steps to avoid the relevant disadvantage to the employee, and has overturned the EAT’s finding that rule 12(1)(b) of the Employment Tribunal Rules, which requires tribunals to reject a claim without a hearing where it is in a form which “cannot sensibly be responded to”, is outside the scope of the Employment Tribunals Act 1996 and therefore ultra vires. As well as overturning the ultra vires issue, the Court of Appeal found that, as the respondent was aware of the circumstances surrounding the claimant’s dismissal, it could and should have responded to the ET1 in basic terms.

Meanwhile, the High Court has dismissed a claim for negligent misstatement brought by an employee against his employer after it issued a reference which contained opinions formed following an investigation into the employee’s conduct. The High Court held that where an opinion is derived from an earlier investigation the referee was only required to take reasonable care in considering and reviewing the underlying material so that they could understand the basis for the opinion.

In a Norwegian working time case, the EFTA Court held that the time spent travelling by a police inspector during temporary assignments between his home and temporary work location could fall within the meaning of working time under the Working Time Directive (2003/88/EC). Although not a binding authority for EU member states, it is likely to be persuasive in the ECJ since it considers the interpretation of an EU directive.

In other news, the IWGB trade union has filed a holiday pay claim on behalf of 20 CitySprint couriers. Lastly,

provisions of the Wales Act 2017 came into force this month, moving Wales to a reserved powers model, and HMRC has published revised guidance on recent changes to the taxation of termination payments.

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