The appeal was against a decision by the Employment Tribunal that the claimants had been dismissed by reason of gross misconduct and so were not entitled to receive their bonuses – there had been no unlawful deduction from wages. The appeal was dismissed. The claimants were suspended pending an investigation into alleged gross misconduct. During their suspension, other employees were paid a bonus under the previous year's bonus scheme and also a bonus for the current year. The claimants were dismissed shortly afterwards. After their dismissal, the respondent did not pay either bonus to the claimants, their case being that the claimants were not entitled to them according to the provisions set out in the bonus scheme. A provision in the earlier bonus scheme specified that no bonus shall be payable where a member of staff leaves the company as a result of gross misconduct. Therefore, according to the respondent, there had been no unlawful deduction from wages. The Employment Tribunal agreed, saying that the claimants did not fall within 'the total amount of wages properly payable by' the respondent. Hellewell & Anor v AXA Services Ltd & Anor 31 August 2011 In this case in calculating a Basic Award, the employment tribunal incorrectly used the claimant's entire service within the NHS, rather than the period when she worked for a particular Trust. Daniel Barnett’s Employment Law Bulletin reports: The EAT (HHJ McMullen QC presiding) has handed down Judgment in the case of Winchester and Eastleigh Healthcare NHS Trust v Walker which is authority for the proposition that (apart from TUPE and statutory reorganisations) statutory continuity of employment is not preserved for NHS staff moving between different health service employers unless S218 (8) ERA 1996 applies, which preserves continuity in prescribed circumstances. In calculating a Basic Award, the employment tribunal incorrectly used the Claimant's entire service within the NHS, rather than the period when she worked for the Respondent Trust. The EAT reduced the Basic Award as the Tribunal had disregarded S218 (8), which preserves continuity for staff moving between NHS employers in specified circumstances - see S218 (9) - which did not apply to the Claimant. The Claimant objected to this point being raised in the appeal, but the EAT held that the as the substance of the S218 (8) point was live before the tribunal, it could be raised on appeal. The Judgment also has commentary on contractual and statutory continuity at paragraph 22. 31 August 2011 This case involves a temporary pub manager who felt that time spent on the premises overnight should be taken into account under the National Minimum Wage Regulations 1999. Daniel Barnett’s Employment Law Bulletin reports: The EAT (Underhill P) has handed down its decision in Wray v JW Lees & Co , which is authority for the proposition that whether time spent by a temporary pub manager on the employer's premises overnight failed to be taken into account for the purpose of being paid the national minimum wage depended solely on the relevant provisions of the National CONTINUITY OF EMPLOYMENT IN THE NHS NMW AND SLEEPING ON THE JOB
CIPP Policy News Journal
09/10/2012, Page 46 of 234
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