Unfair Dismissal: Qualifying Period 12 July 2018
The Employment Appeal Tribunal has upheld the decision that an employee who has been dismissed for gross misconduct just short of qualifying for unfair dismissal, cannot add the week's statutory notice to obtain the right to claim unfair dismissal.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
Can an employee, dismissed for gross misconduct just short of qualifying for unfair dismissal, add the week's statutory notice under s86(1) ERA to obtain the right to claim unfair dismissal?
No, held the EAT in Lancaster & Duke v Wileman, upholding the employer's appeal.
The Claimant had been dismissed two days before her two-year work anniversary. She claimed unfair dismissal as, under s97(2) ERA, adding statutory minimum notice of one week would have taken her 'over the line'. The Respondent argued that s86(6) ERA allowed it to dismiss without statutory notice being added, because of the Claimant's (alleged) gross misconduct. The tribunal erred by concluding that s97(2) ERA, a 'deeming provision', meant that statutory notice had to be deemed included in calculating service for unfair dismissal purposes. Applying s86 ERA entirely, s86(6) preserved the right of parties to terminate without notice, which includes without statutory notice. If the Respondent had been entitled to dismiss without notice, no statutory notice could be added to deemed service.
With no wrongful dismissal case brought, the tribunal had made no finding about whether the employee had committed gross misconduct, so the case was remitted for further findings.
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Sleep-in shifts and the minimum wage 16 July 2018
The Court of Appeal judgment has overturned a previous ruling on sleep-in shifts and the minimum wage. It made the decision that sleep-in shifts do not count as working time.
It is very common in the care sector for workers to agree to “sleep in” overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on if assistance is required in the night but otherwise have no duties. The agreement may be either free-standing or an add-on to a contract of employment involving other duties and will typically be in return for a fixed amount, with an entitlement to further pay if the worker is in fact called on. Residential staff, both in the care sector and elsewhere, may also be required to be “on-call” overnight. On Friday 13 July 2018 the Court of Appeal heard two cases (MenCap v Tomlinson-Blake and Shannon v Rampersad) - the appeal in Mencap , together with Shannon v Rampersad , which is an appeal against a decision made in 2015 in another sleep-in case. In this case it is the employee who is the Appellant. The broad issue in both these appeals is whether the entirety of the period spent on the premises under such arrangements must be taken into account in calculating an employer’s obligations under the National Minimum Wage Regulations or only such time as is spent actually performing some specific activity. There is a good deal of case-law relevant to that question, but its effect is not straightforward. Last year the Employment Appeal Tribunal heard together three sleep-in cases with a view to giving, so far as possible, authoritative guidance. The cases were Focus Care Agency Ltd v Roberts , Frudd v The Partington Group Ltd and Royal Mencap
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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