The worker was a salesman whose pay consisted of two elements, basic pay and commission. His commission was based on sales achieved, and fluctuated from month to month. He was on annual leave for two weeks over Christmas 2011 and he was not able to make any sales during this period. When calculating his holiday pay, his employer took only his basic pay into account. Applying Williams v British Airways , A-G Bot recommended the court find that, as commission is intrinsically linked to the performance of the tasks the worker is required to carry out under his contract of employment, it must necessarily be taken into account in calculating holiday pay. He also recommended that it should be left for national courts to decide on the mechanism for determining the appropriate amount of commission to include. A-G Bot made his ruling having expressly considered the decision of the Court of Appeal in Evans v Malley Organisation, in which it was held that commission does not need to be taken into account when calculating holiday pay. If the Advocate-General's opinion is followed by the CJEU, which it normally is, it would appear that Evans should no longer be followed.
Disability Discrimination: Knowledge of Disability
7 January 2014
Can an employer rely only on an Occupational Health Report when deciding whether an employee is disabled?
No, held the Court of Appeal in Gallop v Newport City Council .
Daniel Barnett’s Employment Law Bulletin summarises the case:
An employer's duty to make reasonable adjustments for a disabled employee only arises where the employer knows or is reasonably expected to know that the employee is suffering from a disability and, as a result, is likely to be placed at a substantial disadvantage. Assessing whether an employee is disabled can be problematic, particularly in a case of mental illness. In this case, decided under the previous Disability Discrimination Act 1995, Mr Gallop was suffering from depression brought on by work related stress. Following the findings of an Occupational Health Report, stating that Mr Gallop's medical condition did not meet the legal definition of disability, he was dismissed by the council in 2008. Whilst his claim for unfair dismissal was successful, his claim for disability discrimination failed both in the employment tribunal and the EAT, where it was decided that in view of the findings of the Occupational Health Report, the employer did not know that the employee was disabled. Overturning the decision of the EAT, the Court of Appeal stated that although an employer should correctly seek assistance and guidance from an Occupational Health Report or other medical expertise, it is for the employer to make a factual judgment as to whether or not the employee is disabled and cannot simply "rubber stamp" an external opinion.
Employment Status: Workers
8 January 2014
Is a person who is unequivocally classified in his written contract as being in business on his own account incapable of being a worker for the purposes of the Working Time Regulations 1998?
Not necessarily, held the Employment Appeal Tribunal (EAT) in Boss Projects LLP v Bragg .
Daniel Barnett’s Employment Law Bulletin summarises the case:
CIPP Policy News Journal
16/04/2014, Page 129 of 519
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