Latest insights from our experts

Posted 10 July 2015
by Stephen Jennings

Tozers employment law newsletter – summer 2015

Two year cap on backdated claims for holiday pay
From 1 July 2015, the Deduction from Wages (Limitation) Regulations 2014 limits the period of time in respect of which employees can claim backdated, underpaid holiday pay to a period of two years. This will apply only to cases raised on or after 1 July. This means that claims for underpaid holiday pay will not be allowed where the date of the payment in question was more than two years before the Tribunal claim was raised. These Regulations are a direct result of the decision in Bear Scotland which decided that non-guaranteed overtime payments should be included in holiday pay calculations. The EAT also held in the Bear Scotland case that claims will be time barred where there has been a break of more than three months between the successive underpayments, thus severely limiting an employee’s entitlement to claim any backdated unpaid sums.

Costs award justified despite claimant’s current inability to pay
The EAT has upheld an Employment Tribunal decision to make a costs award against a claimant, despite the claimant’s current inability to pay. The claimant had fabricated claims which amounted to unreasonable conduct, triggering the tribunal’s discretion to make a costs award. The EAT held that the tribunal had been entitled to conclude that the claimant may be able to pay the costs award at some point in the future.

Zero hours workers have feelings too
An Employment Tribunal has awarded £19,500 for injury to feelings to a zero hour’s worker who was subjected to gender harassment. While the harassment was not of the very worst type, there were certain aggravating features which merited a high award. The claimant was particularly vulnerable due to her young age and fragile mental health. Also, the perfunctory nature of the employer’s investigation, followed by its protracted and ultimately inadequate way of dealing with the problem magnified the effect of the harassment on the claimant.

Time spent in union meetings could be working time under WTR 1998
The EAT has overturned an Employment Tribunal’s decision and held that time spent by a health and safety representative and a union representative attending union meetings between shifts could be “working time” within the meaning of the Working Time Regulations 1998. The employer had argued successfully before the tribunal that the employees were not “at the employer’s disposal” or carrying out their “activities or duties” during the meetings. However, the EAT held that the tribunal had applied too restrictive an approach to the meaning of those words, and that in the circumstances they could include an employee attending a union meeting at a time and place dictated by the employer, and carrying out activities that were, in a broad sense, at least in part for the employer’s benefit.

The question of whether the meetings counted as working time was important because the employees argued that they should have their 11-hour daily rest break between the end of the union meeting and the start of their next shift. The employer had argued unsuccessfully that the meeting itself could be counted towards their rest break.

Whistle-blower? – I don’t think so
Employee fairly dismissed for disobeying instruction not to contact Information Commissioner’s Office.

The EAT has upheld an Employment Tribunal’s decision that an employer did not act unfairly in dismissing an employee who refused to comply with an instruction not to contact the Information Commissioner’s Office (ICO) in relation to an alleged breach of the employer’s data protection obligations. The employee had claimed that his communications with the ICO constituted one or more protected disclosures, and that these were the reason for his dismissal. The EAT held that although one of the communications was a qualifying disclosure, it was not protected, and that the reason for the employee’s dismissal was in fact his misconduct.

The EAT declined to determine the issue of whether the employer’s prohibition on contacting the ICO was lawful, having regard to Article 10 of the ECHR, as it had not been argued at first instance. If it was wrong about that, it would have found that the instruction was not unlawful. The prohibition was only for a short duration, while the employer conducted its own internal investigation, and was only a prohibition on contacting the ICO without the consent of his manager. In any event, the lawfulness of the instruction was relevant, but not decisive, as to whether the employer had a reasonable belief that the employee was guilty of misconduct and had acted reasonably in dismissing him.

Early conciliation: when does time start to run?
An employment judge has held that the Acas early conciliation (EC) provisions should be interpreted so that the time spent in EC should always be, in effect, “added on” to the normal time limit, even when the EC period begins before time starts to run.

The tribunal rejected an employer’s argument that, when the effective date of termination (EDT) falls between Day A and Day B, time effectively starts to run as normal from the day after Day B, with the result that the time limit is extended by the number of days between the EDT and Day B. The days between Day A and the EDT are not added on to the time limit, because time has not yet started to run. The employment judge preferred the interpretation of the employee, who argued that a purposive approach should be adopted, and referred to government publications which appeared to support the interpretation that the number of days spent in EC should be added on to the time limit.

It’s the drink talking
Employee who arrived for work smelling of alcohol was unfairly dismissed.

An employment judge has held that the summary dismissal of a healthcare assistant for coming to work smelling of alcohol was unfair. The judge held that a reasonable employer would not have treated attending for work smelling of alcohol as gross misconduct or conduct justifying dismissal in the absence of either evidence of an adverse effect on the employee’s ability to do his job, or in the absence of a previous warning given under the employer’s disciplinary policy not to do so.

When deciding to dismiss, the employer had taken account of the employee’s refusal, after disciplinary proceedings had been started, to attend an appointment with its occupational health service. The employee had not been told that this was being considered as a disciplinary issue before the disciplinary hearing. The employment judge held that a reasonable employer would not have taken account of a charge that had not been put to the employee when deciding to dismiss. Further, in light of the employer’s policies, a reasonable employer would not have treated the refusal as an act of gross misconduct, misconduct justifying dismissal or a contributory factor to such a conclusion.

Employee fairly dismissed despite procedural deficiencies and non-compliance with Acas Code
The EAT has upheld a tribunal’s decision that an employee’s dismissal was fair in circumstances where there were serious procedural failings at the first stage of the process. The EAT found that the tribunal had given adequate regard to the nature and extent of the flaws and upheld its conclusion that the flaws had been remedied on appeal.

The EAT also upheld the tribunal’s finding that the composition of the appeal panel did not render the dismissal unfair, where not all members of the panel met the standards set out in the Acas Code.

Importance of getting pay correct
ACAS have published a guide to avoiding problems with staff pay

The ACAS guide is aimed at small firms and line or team managers in larger organisations. It suggests steps you should consider following to prevent pay problems arising.

Further advice
Please contact our employment team at Broadwalk House, Southernhay West, Exeter EX1 1UA. Call 01392 207020 or email

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About the author

Stephen Jennings

Partner and Solicitor

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients