Policy News Journal - 2017-18

With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.

The Claimant had served as a volunteer retained firefighter for the Belgian town of Nivelles since 1980. Whilst on 'stand-by duty', he had to be contactable and within 8 minutes travelling time of the fire station. All staff (professional and voluntary) were paid an annual allowance for stand-by shifts, and the Claimant claimed that he had not been paid appropriately for this time. Amongst the issues the Court of Justice of the European Union (CJEU) had to consider was whether stand-by time was working time (having decided that the Claimant was a worker). The Advocate General had suggested that the quality of the time a worker would spend on stand-by was more important that the restriction on where they should be. The CJEU rejected this, noting that the intensity of work did not determine whether time was working time or a rest period. The CJEU went on to decide that when a worker had to be physically present at a place determined by the employer (even if their own home) and available to work at short notice, making it impossible for the worker to choose where to be, then that would come within their normal working duties. Therefore, in this case stand-by time was working time.

It would then be for the national court to determine whether the Claimant had been properly paid for this time.

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Redundancy: Collective Consultation 26 February 2018

Can events occurring after 20+ redundancy dismissals are proposed, provide a defence to a claim for failing to inform and consult?

No, held the EAT in Keeping Kids Company (in compulsory liquidation) v Smith & Ors , but they may affect the size of an award.

In June 2015, KKC applied for emergency government funding to avoid financial ruin with a business plan envisaging a restructure whereby half its staff might be dismissed within a few months.

On 29 July a grant was offered but revoked on 3 August when a police investigation into safeguarding issues at KKC became apparent. On 5 August KKC closed, dismissing its staff.

The tribunal heard a number of claims for protective awards for failure to inform and consult under s188 TULR(C)A . It found the business plan constituted a ‘proposal to dismiss’ and s188(1A)’s reference to consulting within ‘good time’ meant KKC should have consulted ‘promptly’ after the business plan, such that events in August did not constitute a defence of a ‘special circumstance’ for s188(7). KCC appealed. The EAT held the Tribunal was entitled to conclude the obligation to consult arose in June not August as the business plan in June foresaw only immediate insolvency or large-scale redundancies. Whilst events in August did not excuse the obligation to consult, which crystallised beforehand, they could be relied on to reduce the size of the award.

With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.

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Agency worker rights 1 March 2018

Can agency workers, entitled after 12 weeks to the same basic working conditions as an end-user's employees, be compensated for less holiday or unpaid breaks by a higher hourly pay?

No, held the EAT in Kocur v Royal Mail , upholding two grounds of the Claimant's appeal.

Regulation 5 of the Agency Workers Regulation 2010 entitled the Claimant to the same basic working and employment conditions as the hirer's comparable employees. He got higher hourly pay, but 2.5 days less holiday; a 1-hour rest

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Policy News Journal

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