New legislations and laws are always changing, updating and being implemented and it can be difficult to keep up. That’s why we’ve covered a few of the top legislation changes within the last few months, including a short Q&A on employment law.

Illegal Working within the UK

The UK Visas and Immigration quarterly report has been published, showing that 943 illegal workers were found within the UK, and that £9 million in employer fines were issued between 1st of January and the 31st of March 2015.

This acts as a harsh reminder to employers that they are legally required to ensure their employees are eligible to work within the UK and must carry out the relevant checks in respect of a new recruit before their employment commences.

Holiday Pay

EasyJet have decided to include commission payments when calculating the holiday pay for their cabin crew and will also compensate eligible staff for underpayment of holiday for the two preceding years.

This follows the European Court of Justice Case of Lock V British Gas, which is under appeal, due to be heard in December 2015.

The airline said, “we believe it is right to make the award now since cabin crew, the majority of which are not union members, have been waiting for a conclusion to the pay discussions for a number of months.”

Increase in the National Minimum Wage

From the 1st of October 2015, the National Minimum wage has increased with hourly changes as below:

• The standard adult rate (for workers aged 21 and over) is £6.70.
• The development rate (for workers aged between 18 and 20) is £5.30.
• The young workers rate (for workers aged under 18 but above the compulsory school age who are not apprentices) is £3.87.
• The rate for apprentices is £3.30.

Q&A on current employment laws

Should Voluntary Overtime be included within Holiday pay?

Yes – held the Court of Appeal in Northern Ireland (Patterson v Castlereagh Borough Council).

Although decisions from the Northern Ireland Court of Appeal are not legally binding on the Courts and Tribunals in England and Wales, this decision is likely to act as persuasive authority in respect of future decisions regarding holiday pay and overtime.

Unfortunately, no guidelines were given in respect of the test an employer should apply when determining what should be included within holiday pay, noting that it was a ‘question of fact’ for each tribunal to consider, based on the circumstances of each particular case. As the holiday pay saga continues, employers are urged to review their position and whether or not they are doing enough to remain protected.

However, according to ACAS “there is currently no definitive case law that suggests voluntary overtime needs to be taken into account.”

Can an active written warning given in bad faith be relied upon when subsequently dismissing an Employee?

No – Held the Court of Appeal (Way v Spectrum Property Care Limited).

In this case, the employee had a final written warning on his file when dismissed for an unrelated act of misconduct. The final written warning was taken into account by the employer when making its decision to dismiss. The employee alleged that the final written warning was given in ‘bad faith’ and so should not have been taken into account. The Court of Appeal agreed and the dismissal was found unfair.

This acts as a warning to employers to ensure that any written warning given to an employee is given fairly and reasonably in the circumstances, in line with the ACAS Code of Practice. If not, this could greatly impact upon the fairness of any subsequent dismissal.

If you require advice or guidance in respect of either of the above issues please contact your designated Employment Law Consultant or call Kelly on 0845 607 6154 in order to discuss our services in further details.

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