The employer argued that the question of whether the deduction clause was enforceable was irrelevant to the statutory scheme under Part II of the Employment Rights Act 1996. On appeal, the EAT (HHJ Hand presiding) disagreed, stating that an employment tribunal's jurisdiction frequently involves the application of common-law contractual principles to situations where the cause of action is statutory. The EAT also provided guidance as to when a repayment clause may be enforceable. The starting point is to look at the contract when it was entered into. Then the tribunal must decide, objectively, whether the purpose of the clause was to deter or to represent a genuine pre-estimate of loss. This question may involve a comparison between the amount stated in the clause and a realistic figure the employer might recover. If the difference is "extravagant"• or "unconscionable"•, the clause is likely to be unenforceable.
National minimum wage for sleepovers
14 November 2013
Is the national minimum wage payable to homecarers for the time that they are sleeping in client's homes?
Yes, sometimes said the Employment Appeal Tribunal in Whittlestone v BJP Home Support Ltd .
Daniel Barnett’s Employment Law Bulletin summarises the case:
W was a care worker. She was paid £6.35 per hour for time spent attending to clients at their homes, but nothing for travel time. She also undertook "sleepovers", when she was required to be present at a client's home from 11pm to 7am, and for which she was paid £40. She was provided with a bed, and permitted to sleep except when her services were actually required. It was common ground that she was doing "time work" for the purposes of regulation 3 of the NMW Regulations 1999. W was entitled to the NMW throughout the time she was required to be present, irrespective of whether she performed any tasks. She was also entitled to the NMW for her travel time between clients' homes.
TUPE liability
19 November 2013
Is a company administrator able to make dismissals for economic, technical or organisational reasons (ETO) and then sell the business on without passing TUPE liability for them to the purchaser?
Yes, if the reason for the dismissals was to enable the company in administration to continue to trade, holds the Court of Appeal in Crystal Palace FC Ltd v Kavanagh and others .
Daniel Barnett’s Employment Law Bulletin summarises the case:
The employment tribunal had found that the reason dismissals were made by the football club’s administrator was to continue trading the business, with an ultimate objective of selling it on to a purchaser waiting in the wings. It followed that the dismissals were made for ETO reasons so that liability did not pass to the club’s purchaser. The EAT rejected that approach as contrary to Spaceright Europe Ltd v Baillavoine . It held that the administrator's admitted intention of selling the club on meant that the dismissals could not be made for ETO reasons. That meant that liability passed to the Club’s purchaser.
CIPP Policy News Journal
16/04/2014, Page 124 of 519
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