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October 2009 Updates

Employee/worker status

The Court of Appeal has handed down its judgment in Autoclenz v Belcher, which primarily concerned the question of employee/worker status. The case is authority for the proposition that:

  1. Where you require people to let you know if they're not going to turn up for work, this can be at complete odds with a provision in their contract which states that they don't have to perform any work for you. Consequently, you may not be entitled to rely upon this provision and will find yourself with an employee instead of a non-employee worker (with all of the implications resulting from that).
  2. You will not get off the hook and have a non-employee worker instead of an employee where, in reality, that person always performs work for you personally, themselves. This is the case even where you have a contractual provision stating that they can use someone else to carry out their work for them because this is not what happens in practice.

TUPE information and consultation

In Royal Mail v Communication Workers Union, the Court of Appeal has considered an employer's consultation obligations in a TUPE transfer situation. It held that the only obligation on a transferor employer is to communicate matters (such as the legal, social and economic implications of the transfer) as it believes them to be. It does not warrant the truth of what it says. Therefore, if it makes a mistake about the legal implications of the transfer, it will not, purely as a result of that mistake, be liable for a failure to inform and/or consult.

Discrimination by association

The Employment Appeal Tribunal has given another decision in the long running case of Attridge Law v Coleman, involving discrimination by association. It has confirmed that:

  1. Person A discriminates against person B if person A treats person B less favourably than they treat or would treat another person, by reason of the disability of person C who is associated with person B.
  2. Person A subjects person B to harassment where, for a reason which relates to the disability of person C, person A engages in unwanted conduct which has the purpose or effect of (a) violating person B's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Dismissal during part-time parental leave

In Meerts v Proost NV, the European Court of Justice has held that the European Community framework agreement on parental leave entitles workers dismissed without the statutory period of notice while on part-time parental leave to be paid compensation based on their ordinary full-time salary, rather than the reduced salary received while on parental leave.

In the United Kingdom, an employee on parental leave is typically entitled to be paid their normal, full wage in respect of their statutory minimum notice period. However, this is not the case where the employee's contractual notice period is at least one week more than the statutory minimum. In that eventuality, they are only entitled to receive what they would otherwise be paid at the time irrespective of notice having been served (which may amount to nothing). Thus, an employee is not entitled to be paid their full salary where they are on parental leave and serving out an enhanced contractual notice period (or being paid in lieu of it). They are only entitled to receive any parental leave pay. Accordingly, the UK's position seems to run counter to the European Court of Justice's decision in this case and may require change.

Key legislative changes in October

  1. The maximum amount of a week's pay for the purpose of calculating statutory redundancy payments and basic awards for unfair dismissal has increased from £350 to £380.
  2. The national minimum wage has increased from £5.73 to £5.80 an hour for workers aged 22 and over; from £4.77 to £4.83 an hour for 18 to 21-year-olds; and from £3.53 to £3.57 an hour for 16 and 17-year-olds.
  3. Tips can no longer be used to top up wages to meet the national minimum wage.
  4. The Vetting and Barring Scheme for checking the suitability of individuals to work with children and vulnerable adults has been launched. Existing lists of barred individuals - such as the list established under the Protection of Children Act 1999 - will be replaced by two new 'Barred Lists'. From 26 July 2010, applicants will be able to apply for registration with the Independent Safeguarding Authority (ISA). Once the scheme is fully implemented, anyone working or volunteering with children or vulnerable adults in a 'Regulated Activity' will have to be registered with the ISA. It will be an offence for someone to deploy a person in a Regulated Activity without first confirming their ISA registration and they will also have a legal duty to refer appropriate information to the ISA.


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SRA number 404293