30 November 2018
Category: news
30 November 2018,

Life Outside of Brexit?

Brexit, Brexit, Brexit… that’s all one hears these days.  What with negotiations on the transition deal with the EU, and now the precarious vote in Parliament, virtually all other government business has seized up.  The world of employment law is no exception, with precious little of significance coming up.  But that said…….

………..It has been reported that the Ministry of Justice (MoJ) is planning on reintroducing fees for bringing employment tribunal claims.  The previous scheme was deemed unconstitutional by the Supreme Court in 2017, and so far the MoJ has made refunds totalling £15.8m.

Not surprisingly, since fees were abolished there has been a marked increase in the number of tribunal claims brought.

Undeterred, the MoJ says it will reintroduce a scheme which helps fund the court system while being ‘proportionate and progressive’, although it has no immediate plans of doing so.

Presumably we’ll hear more about this after the UK has withdrawn from the UK in March 2018 (or not…)

Meantime, there have been some recent interesting cases recently.

Long-Term Disability Benefits – Implied Term not to Terminate

The EAT has held that there is an implied term not to dismiss an employee for incapability if it would thwart contractual entitlement to long-term disability benefits, even if the plan states that the benefits would terminate if the employee was no longer employed: Awan v ICTS

Vicarious Liability – Beware!

Mr Skelton was a senior IT internal auditor with Morrisons.  He was convicted of fraud and other criminal offences for sharing employees’ personal data online and with three national newspapers out of a grudge against Morrisons.

The Court of Appeal held that Morrisons was vicariously liable, ruling that there was a sufficiently close connection between Mr Skelton’s employment and his wrongful conduct – even if his motive was to cause financial or reputational damage to Morrisons.

The lesson here is to check your insurance covers large data breaches by employees, together with as many actions by employees as possible even if not part of their job.  WM Morrison Supermarkets Plc v Various Claimants

Holiday Pay – More Rights

There has been a long line of case-law from the EU Court (CJEU), which has strongly upheld workers’ rights to holiday.  In Max-Planck-Gesellschaft v Shimizu, the CJEU ruled that even if the worker did not take his entitlement to holiday and there was no reason preventing him from doing so (eg illness), the employer would still have to show that it ‘diligently’ and in good time brought it to the worker’s attention that the holiday would be lost if not taken by the end of the year.

Here in the UK, this applies to the 20 statutory days’ holiday, so if you want to be safe it would be a good idea to send out this kind of notice at some point during the year.

Which brings me back to Brexit.  The one area of EU-led employment law which the UK may start to change after Brexit is under the Working Time Regulations.  But there’s still a long way to go before that happens.

(c) Ben Thornber, Thornber HR Law

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