This decision seems to support the trend for employees having fairly subjective grounds for refusing alternative employment which will make restructures (particularly in the NHS and local government) more expensive and challenging than perhaps first thought.
Calculation of week's pay for compensatory award
27 September 2013
An employment appeal tribunal raises questions as to the proper calculation of a week’s pay for the purposes of both the basic and compensatory awards following a finding of unfair dismissal.
Employment cases update looks at the case of Toni & Guys (St Paul's) Ltd v Georgiou :
Calculation of a week's pay for purposes of compensatory award for unfair dismissal can take into account factors which affected the rate of pay such as the employer's malicious actions in diverting business away from the employee. However, the basic award must be calculated strictly according to the set formula in ss 222 and 223 ERA 1996. The claimant was found to have been unfairly dismissed and was entitled to a Basic and Compensatory Award. The EJ worked out her gross weekly pay by considering what she would have been paid if the respondent had not suspended her, blackened her name, caused her to lose the goodwill of her clients and diverted work away from her. The Basic award was calculated on this basis and the Compensatory Award was calculated using the netted down figure. The respondent appealed, saying that the Basic Award should be calculated using the definition of a week's pay as stated in ss 222 and 223 of the ERA and not according to a speculative exercise employed by the judge. The EAT allowed the appeal in respect of the Basic Award but not the Compensatory Award – the ET has more discretion when making a Compensatory Award, since s123(1) ERA says that 'The amount of the compensatory award shall be such amount as the Tribunal considers just and equitable, having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer'. However, there was no such discretion when working out the Basic Award.
Is an intended mother in a surrogacy arrangement entitled to maternity leave?
1 October 2013
Yes, according to the opinion of Advocate-General Kokott in Case C 167/12 - CD v ST.
Daniel Barnett’s employment law bulletin reports:
The Claimant and her partner had a child via a surrogate mother. The Claimant started mothering and breastfeeding the child within an hour of the birth. The couple were granted a parental order. The Claimant lodged a claim with the employment tribunal after being denied paid maternity and adoption leave by her employer on the grounds that she did not give birth to or adopt the child. Following a preliminary reference by the Employment Judge, the Advocate-General has suggested the CJEU should find that an intended mother has the right to receive maternity leave under the Pregnant Workers Directive 92/85/EC, even when she does not breastfeed the child. Compulsory leave of at least two weeks must be granted to both mothers. However, the concept of surrogacy cannot result in a doubling of the leave entitlement under the Directive. Four weeks of mandatory leave must be deducted from the 14 week minimum. The remaining 10 weeks should be divided between the women taking into account the legally protected interests of the Directive.
CIPP Policy News Journal
16/04/2014, Page 115 of 519
Made with FlippingBook - Online magazine maker