In this month's alert, we cover six cases that provide useful guidance for employers across a range of topics.
Two of the cases concern unlawful deductions from wages – an EAT decision in relation to holiday pay, and an employment tribunal judgment on an employer's decision to withhold an employee's pay while he was suspended and awaiting criminal trial.
We then look at an EAT decision on what will constitute improper behaviour during pre-termination negotiations, a Court of Appeal judgment on the extent of directors' fiduciary duties where those directors seek to set up their own competing business, and the Supreme Court's ruling on a trade union's ability to enforce check-off arrangements. Finally, we review an EAT decision on harassment relating to an employee's accent, and victimisation.
On the legislation front, we set out the newly published rates for certain statutory payments that will apply from April 2025.
We continue to keep track of the progress of the Employment Rights Bill, which is being subjected to detailed scrutiny as it goes through Parliament. On 25 November 2024, the Regulatory Policy Committee published its opinion, which deemed eight of the impact assessments on some of the Bill's proposals "not fit for purpose". In addition, the government have already published some amendments they wish to make to the Bill – in fact 53 pages of amendments! Many of the amendments are to technical details, but one very key change is a proposal to extend the time limits for making employment tribunal claims from three to six months. This is something we were expecting, but is a significant change nonetheless. We have recently released the third episode in our podcast series on the Bill. This episode looks at the Bill's trade union and industrial relations proposals. You can access all currently available episodes here. The final episode, discussing fire and rehire and the proposals around zero / low hour contracts and shift work, will be published on Monday 9 December 2024.
May we finally take this opportunity to wish all our readers Season's Greetings and best wishes for the coming year from all at DAC Beachcroft.
Holiday pay: EAT applies Agnew decision that three month gap does not break series of deductions
In this case, the EAT has applied the Supreme Court's decision in the Agnew case, that underpayments of holiday pay are not broken by a correct payment nor a gap of more than three months between underpayments.
Wages: withholding pay during suspension was unlawful
In this case, the employment tribunal determined that Manchester City Football Club's non-payment of wages to a player for 18 of the 22 months he was suspended from work pending trial for sexual offences amounted to an unlawful deduction from wages.
Settlement: EAT gives guidance on pre-termination negotiations
In this case the Employment Appeal Tribunal (EAT) held that an employee was not permitted to introduce details of his employer's actions during pre-termination settlement negotiations as evidence in support of his unfair dismissal claim. This was because the employer's actions did not meet the threshold of "improper" behaviour under the Employment Rights Act 1996 (ERA).
Directors: Court of Appeal considers fiduciary duties
In this case the Court of Appeal considered whether directors of a company who had taken preparatory steps towards setting up a competing business prior to their resignation had thereby acted in breach of their fiduciary duties.
Trade unions: Supreme Court confirms union can enforce "check-off" provision in employment contract
In this case, the Supreme Court held that a trade union was entitled under the Contracts (Rights of Third Parties) Act 1999 (the 1999 Act) to enforce a contractual term offering the facility for "check-off arrangements", whereby employees' trade union subscriptions were deducted directly from their salaries through the payroll system and then paid to the union.
Harassment: comments about employee's accent could be related to race
In this case, the EAT held that comments about an employee's accent could be related to her race and therefore may amount to harassment. It also considered whether the employer's refusal to disclose meeting notes due to concern that the employee may use them to support a discrimination claim could constitute victimisation.
Statutory payments: new rates of statutory family leave pay and statutory sick pay published
On 21 November 2024, the Government published the rates of statutory payments for family-related leave and sick leave that it intends to apply from April 2025.
