With so many important employment law cases being heard soon for UK Startups and SMEs, we’re taking a look at the cases that are expected to be heard in 2015, and what the impact might be for businesses taking on employees this year.

Our Advisors cannot answer employment questions via telephone. If you have a query leave a comment below or call the Acas Helpline on 0300 123 1100.

Employment Tribunal Fees

Unison v Lord Chancellor

Unison appeal again after last year’s two unsuccessful proceedings to challenge the introduction of Employment Tribunal fees in July 2013.

Since 29th July 2013 a claimant (usually a worker or employee) needs to pay fees to bring a claim to Employment Tribunal and they are:

On announcement of the fee system in 2013, the largest UK Union, UNISON, received permission for a Judicial Review of these fees, which was heard in October 2013 by the High Court.

At the Judicial Review, UNISON argued that the fees contradict European Union laws and would make it virtually impossible for workers to exercise their legal rights. On 7th February 2014, the High Court judges ruled that there was insufficient evidence to suggest the fees were unfair, so UNISON’s initial challenge failed.

In May 2014 Unison were granted further leave to appeal the High Courts decision and fresh proceedings were heard in October 2014 and a decision was announced on 17th December 2014.

The High Court dismissed this second attempt at judicial review saying they felt that there was limited case law relating to circumstances where the cost of litigation “had the effect of denying the claimant an effective remedy.” You can read the full details here.

This fresh appeal to the Supreme Court is likely to take several months at which point Judges will again decide if a third attempt to overturn the fees can proceed. Both the Labour Party and Liberal Democrats have indicated that they would reduce Tribunal fees if they come into power in 2015. If Unison are successful this time the Government (whoever that is) would be expected to lower tribunal fees and/or alter remission thresholds rather than abolish fees altogether.

The meaning of a ‘temporary’ agency worker

Moran v Ideal Cleaning Services Limited

In December 2013 the Employment Appeal Tribunal said that the Agency Workers Regulations do not cover workers who are on ‘indefinite’ assignments with the end hirer, it only covers workers who are on ‘temporary’ assignments. You can read the full details here.

The Agency Workers Regulations (AWR), which came into force in October 2011, gives agency workers the right to ‘equal treatment’ with the same pay and other basic working conditions as equivalent permanent staff.

Under these regulations, an agency worker is defined as someone who is “supplied by a temporary work agency to work temporarily for, and under the supervision and direction, of a hirer”.  Full details are here.

The Court of Appeal is to determine whether agency workers placed on assignments of an indefinite length fall within the Agency Workers Regulations and are entitled to the employment protections of these regulations.

Holiday Pay and Commission

Lock v British Gas

In Lock v British Gas, Mr Lock was a salesman whose pay consisted of basic pay and commission. The commission fluctuated (based on sales achieved) but on average it accounted for 60% of his pay. He only received basic pay while taking holidays. The Advocate General of the European Union agreed Mr Lock’s holiday pay should include an average sales commission, as this was part of his remuneration, and recommended this decision to the ECJ who in May 2014 agreed.

The ECJ added that a national court should determine the method of calculating the average Sales Commission. The Advocate General said that Mr Lock’s average Sales Commission over the last 12 months appeared to be an appropriate amount that should be included in his holiday pay.

This case returned to the Employment Tribunal in February / March 2015, to address issues such as the appropriate reference period for calculating holiday pay in these circumstances. In May 2015 British Gas said they were appealing the ET decision.  This case comes on the back of the 2014 decision that regular overtime should be included when calculating holiday pay.

Travel time as working time

Privados del sindicato Comisiones Obreras v Tyco Integrated Security

The European Court of Justice is to decide whether travel time counts as working time where a worker does not have a fixed place of work but is required to travel at the beginning of the day from home to the premises of one his customers and to return home from the premises of another, existing, customer (following a list or route that the Employer has determined for the worker).

In July 2015 the ECJ’s Advocate General gave his ‘opinion’ that for peripatetic employees (with no fixed workplace), their time spent travelling from home to the first customer (and from the last customer back home) does count as “working time”, as long as the workers were:

  • at the workplace
  • at the disposal of the employer and
  • carrying out their activity or duty.

If the ECJ’s actual ruling agrees then the UK may need to change its approach to working time (not the National Minimum wage).

Carers employed on zero hour contracts (backed by UNISON)

Apex Care Home in Hampshire

11 care workers working at Apex Care Home in Hampshire lodged a tribunal claim in September 2014, following a campaign by UNISON at the end of 2013 for Apex to:

  • Pay staff no less than the national minimum wage during travel time, and
  • To issue new contracts that include a reasonable number of minimum guaranteed hours of work per week, and
  • To have no more than one split shift per day per member of staff, and
  • To ensure all staff receive itemised pay slips that clearly indicate all hours worked and the applicable rate of pay, and
  • To introduce a fair and transparent pay structure.

As Apex have appeared to have failed to address any of these issues raised by Acas, the care workers lodged a tribunal claim which we would expect to be heard in 2015. The claim focuses on the fact that they were paid under the National Minimum Wage as they were not paid for time spent travelling between the homes of their clients.

The Swedish Derogation

The GMB Union & EU officials discuss a ‘legal loophole’ in the Agency Workers Regulations

The Swedish Derogation allows temporary workers to be paid less than permanent workers at the place where they work, when they are employed on a contract with their agency.

The Swedish Derogation is legal but GMB claim that it is unethical. The dispute comes from the Swindon distribution centre of DHL, the delivery firm, where employees of DHL are paid £2 more an hour than agency staff employed there.

A GMB Spokesman said that “it was interesting to note than only five member nations have allowed the Swedish Derogation” – the UK, Ireland, Sweden, Hungary and Malta. We wait to see what the EU Commission’s response is!

Working Time Directive consultation

The EU Commission will consult on the Working Time Directive in 2015, looking at the possibility of reform to areas including:

  • Compensatory rest – which is given where, for example, a full 11 hour rest break cannot be had between shifts – they will consider should it be given immediately or within 2-4 days (as now the legislation says it should be given as soon as possible).
  •  Whether the concept of an ‘autonomous worker’ should be clarified or changed. Autonomous workers are currently those whose working time is not measured or pre-determined (and where the worker has control over the number of hours they work) who is then excluded from all rest break provisions and the 48 hour maximum weekly working hours. This generally applies to Company Directors and Managers (and specifically those with autonomous decision making powers), family workers and religious workers.
  • Whether the Opt-Out, where you currently agree to work more than 48s hour per week, should be abolished and/or be made stricter.

Consultation will close in march 2015 and an assessment is expected later in the year.

We’ll let you know when the decisions are in!

Our Advisors cannot answer employment questions via telephone. If you have a query leave a comment below or call the Acas Helpline on 0300 123 1100.

If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.