Review of Employment Case Law Updates Aug-Dec 2014

12 February 2015

Worthingtons Solicitors' Review of Employment Case Law Updates Aug-Dec 2014

INTRODUCTION BY WORTHINGTONS

Welcome to the first Worthingtons Case Review of 2015. As always, it’s been a busy time for employment lawyers and HR Personnel and this is reflected in the decisions reviewed. With austerity and budgetary constraints a continuing hallmark of the economic climate, unfair dismissals and redundancies regularly feature before the Tribunals and there are a number of these decisions summarised in the review.

The Fulton and Others-v- Bear Scotland decision on the calculation of annual leave under the Working Time Regulations was applied by the NI Tribunal in the case of Robert Patterson –v- Castlereagh Borough Council where it has been confirmed that “voluntary overtime”, which an employee was not contractually obliged to do, could NOT be included in the calculation of holiday pay for the purposes of the Working Time Directive/Regulations.

The Fulton –v- Bear Scotland case decided that overtime, which employees are required to work, but which the employer was not obliged to offer, is included within the calculation of holiday pay under Regulation 13 of the Working Time Regulations. An important feature of these cases, was confirmation that the calculation of overtime under the European law related to Regulation 13 entitlement and not Regulation 13A, in that it related to the entitlement of 4 weeks annual leave under the Directive and not the additional 1.6 weeks under the domestic Regulations (13A) – this will invariably cause difficulties for employers trying to apply this. In addition the case confirmed that claims for arrears of holiday pay will be out of time if there has been a break of more than three months between successive underpayments. Although leave was given to appeal to the Court of Appeal, the matter is now not being appealed.

Another decision that has caught the eye of many commentators is the Coventry University and Mian case, which was recently over-turned by the Court of Appeal. In this case the High Court found there was a breach of contract and negligence on the part of the university in the decision to instigate disciplinary proceedings against its employee thus allowing her to claim psychiatric damages. However the Court of Appeal did not accept that in this case the employer acted outside the “range of reasonable responses test” in deciding to take disciplinary action. Nonetheless making the point that a decision to take disciplinary proceedings could, depending on the circumstances, give rise to liability for negligence.

Finally a favourite amongst employment lawyers – Costs – the three cases in the review are very fact specific but give some hope that a costs award is not as elusive as it used to be. We would encourage you to read these decisions as they set out very clearly the legal basis for a costs application but we would emphasise that awards of £10,000.00 and £5000.00 still remain the exception rather than the rule. To make it easy to access particular areas of interest or cases of note, the review has been categorised into topics so you can link directly to the case summary or the full case report as required – enjoy! We hope that you will find the case law review of assistance and should you have any queries or require specific advice, please do not hesitate to contact us.

Maxine Orr & Louise McAloon

Worthingtons Solicitors 24-38 Gordon Street Belfast BT1 2LG T: 028 90 434015

E: employment@worthingtonslaw.co.uk

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