The employment tribunal had held that by failing to consider an extension to the PTMG plan beyond 13 weeks, JP had breached its duty to make reasonable adjustments. JP appealed.
Allowing the appeal, the EAT found that the tribunal had incorrectly identified that the provision criteria or practice placing H at a substantial disadvantage was the requirement for him to work, whereas it should have been the requirement for him to work his contractual hours. Noting that employers are often presented with Fit Notes which last a certain duration, the EAT did not consider that it is always necessary for the employer to give an explicit guarantee to extend this period. If at the end of the agreed period, an employee continues to suffer a substantial disadvantage, then although the duty to make reasonable adjustments will still be applicable, it will be judged on the circumstances relevant at that particular time.
Courts decide when employees on short time working should get guarantee payments
1 November 2013
The Court of Appeal has looked at what is meant by an employee being “normally” required to work.
The CIPD (Chartered Institute of Personnel and Development) has written an interesting article regarding an employer’s right to exercise options under the Employment Rights Act 1996 to lay off employees or put them on short-time working when there is a downturn in trading. Employees on short-time working may be entitled to a guarantee payment (currently £24.20) for those days when they would normally work, but do not have work because their employer has imposed a temporary reduction in working hours. In the case Abercrombie v AGA Rangemaster , recently heard at the Court of Appeal, the court considered, for the first time, when an employee being “normally” required to work occurs. Facts Abercrombie and his colleagues were hourly paid employees, contracted to work Monday to Friday. Due to poor trading, the employees entered into an agreement with the employer to reduce their working hours temporarily and to shorten their working week to Monday toThursday. The agreement, which allowed the employer to call its employees back to their full working hours on one week’s notice, initially ran until 26 June 2009 but was subsequently extended to 31 December 2009. The employees’ trade union, the GMB, requested confirmation that the employees were entitled to guarantee payments for the Fridays they were no longer working. The employer denied that the employees had a right to guarantee payments on the basis that, under the new agreement, they did not “normally” work on Fridays. The trade union disagreed and issued tribunal proceedings. Tribunals The claims were initially dismissed by both the employment tribunal and the Employment Appeals Tribunal on the basis that a temporary change to an employee’s contract did result in a change to the employee’s “normal working hours”. The Court of Appeal, however, overturned the earlier decisions and held in favour of Abercrombie and his colleagues. Court of Appeal The court distinguished this from previous cases where employers had permanently varied employees’ working hours under their contracts of employment. The difference in this case was that the variation to the employees’ contracts of employment was temporary and not permanent.
CIPP Policy News Journal
16/04/2014, Page 121 of 519
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