Recent Developments in Employment Law

18/04/2016 – (as at 11th April 2016)

Monitoring emails, etc. Despite recent news reports, following the European Court of Human Rights’ decision in Barbulescu v. Romania, it is still advisable for employers to have a policy on monitoring, if it plans to monitor its employees. Additionally, if the reason for the monitoring is the enforcement of the employer’s rules or standards, the rules should be clearly set out in a policy (e.g. internet/social media policy) which refers to the associated monitoring, and employees should be made aware of the policy.
E-smoking. An employer should have a clear policy on its approach to e-cigarettes, if it wants to be able, fairly, to deal with the use of e-cigarettes as an issue.
Duty of care in relation to dismissal. In a rather surprising development, an employer may now be liable for psychiatric illnesses which are caused by the events leading up to a dismissal. Therefore, employers should take care to consider the reasonableness of any steps taken in relation to dismissals and also the fragility of the individual, no matter the length of service of the individual.
Rights on maternity/paternity leave. There is a duty to offer a woman on maternity leave a suitable alternative job, and this duty arises when the employer becomes aware that her role is redundant or potentially redundant. Men or women on Paternity Leave also have this right.
New Post Termination Restrictions. If an employer wants an existing employee to agree new post termination restrictions or confidentiality obligations, the new obligations should be linked to a pay increase or bonus which is conditional on the employee’s agreement to the obligations. If the obligations are to be linked to a promotion, the employer should ensure that a new contract is signed by the individual, as a simple acknowledgment of agreement will not be sufficient to create a valid obligation.
Calculation of holiday pay. Commission payments which cannot be earned while a worker is on holiday should be included in the calculation of the worker’s holiday pay, but (just to complicate things!) technically only in respect of 20 of the 28 days of their statutory holiday entitlement (or 4 of the 5.3 weeks of it). Therefore, employers should give careful thought to how to ensure that their workers are no worse off financially for having taken holiday; unfortunately, there is not a “one size fits all” approach to this exercise.
Holiday entitlement/pay for sick employees:
1. If a worker is not permitted by contract or legislation to take annual leave during a period of sick leave which coincides with a leave year, the worker is entitled to take that leave in a subsequent leave year.
2. If a worker is permitted to take annual leave while on sick leave, the worker may choose to take that leave during the sick leave, or to take it at a later date.
3. A worker on sick leave is not required to demonstrate that he or she is physically unable to take annual leave by reason of his or her medical condition.
4. The carry over period for annual leave is not unlimited; the leave must be taken within 18 months of the end of the leave year in which it accrued, where the worker was unable or unwilling to take annual leave because of sickness.
5. Unless a contract or other agreement provides otherwise, a worker may only carry over 20 of the 28 days of their annual statutory holiday entitlement (or 4 of the 5.3 weeks of it).

National Minimum Wage

The current rates for the National Minimum Wage, which increased on 1 October 2015, are:

Year	21 and over	18 to 20	Under 18	Apprentice*
2015 (current rate)	£6.70	£5.30	£3.87	£3.30

*This rate is for apprentices aged 16 to 18 and those aged 19 or over who are in their first year. All other apprentices are entitled to the National Minimum Wage for their age.

Please note that the National Minimum Wage will increase again, in October 2016, to: £6.95; £5.55; £4.00; and £3.40, respectively.

National Living Wage

From 1 April 2016, the National Living Wage replaced the National Minimum wage, for workers aged 25 and older, and is set at £7.20 per hour. The National Minimum Wage still applies to workers aged 24 and under.

For further information on any of these topics, or employment law advice generally, please do not hesitate to contact Ben Lindsay