Employment Highlights August 2018

This month, the ECJ has decided that a five-month cessation of activities does not necessarily preclude the occurrence of a transfer of an undertaking. It held that despite a five-month gap between the termination of a contract for a Spanish music school and the resuming of activities by a different contractor, a transfer of an undertaking had potentially occurred for the purposes of the Acquired Rights Directive (2001/23/EC).

Meanwhile, the Supreme Court handed down a judgement on enhanced criminal record certificates. It held that the inclusion of a rape acquittal in a job applicant’s certificate was not a breach of privacy provided police are satisfied that, among other requirements, the information is “relevant” and “ought to be included”. In a separate case, the Supreme Court held that it would not be fair, just or reasonable to impose a duty of care on the Police Commissioner to protect the economic interests and reputation of police officers when conducting litigation against them based on alleged misconduct. The court found that such a duty would be incompatible with the Commissioner’s freedom to act in the public interest.

The Court of Appeal has handed down a judgement that a debarred respondent to employment tribunal proceedings should have been allowed to make representations on remedy. The court held that this would generally be the case, as only exceptional circumstances would justify excluding the respondent when a separate assessment of remedy was required.

The EAT has handed down several interesting judgements this month. It set aside an employment tribunal decision, holding that an email concerning a redundancy exercise was not protected by legal advice privilege as there was a strong prima facie case of an iniquity. In a separate case, the EAT clarified that the primary question when considering bad faith for the purposes of a victimisation claim under the Equality Act 2010 (EqA 2010) is whether the employee acted honestly when making the allegation. This month, the EAT also clarified that time limits for presenting tribunal claims expiring on a weekend or bank holiday are not extended to the next working day. It held that, although this is the case for time limits specified in the employment tribunal rules, it was not the case for those imposed by statute. The EAT has also held that a firm of solicitors’ actions in failing to check an ET1 drafted by their client could be reasonable, allowing a tribunal to find that it had not been reasonably practicable to present the claim on time, where the client was attempting to save costs. In another case, the EAT held that the key factor in establishing agency worker status was whether the work was temporary or permanent.

In other news, the Women and Equalities Committee has launched an inquiry into the enforcement of the EqA 2010. The inquiry, which follows a series of separate inquiries led by the Committee into specific forms of discrimination, aims to collect evidence on the enforcement of the EqA 2010 as a whole, the success of available remedies and the effectiveness of the Equalities and Human Rights Commission as an enforcer. HMRC has also advised that, with effect from 2 July 2018, where there has been a TUPE transfer of employees, all national minimum wage liabilities, including the full penalty amount, will now be enforced against the transferee employer.

Recent Blog Posts

Get in Touch

01323 453255
07847 549790

Get Connected