September 24, 2015

Employment Case Law Updates Latest

Fit for Work service

  • Department for Work and Pensions initiative
  • The Fit for Work service has been introduced to provide free occupational health assessments and return to work assistance for employees who have been absent for four weeks or more.
  • There is a cap on the value of the assessments at £500 (tax-free) per employee per year.
  • Qualification- the employee must have been off sick for at least 28 consecutive days
  • Employees can be referred to the service by either their GP or by their employer.
  • The employee needs to provide consent.


A phased roll-out started in March 2015 and is expected to be complete by the end of 2015.

  • Employers more likely to fund the treatment as a result although they are not obliged to use the service.
  • Employers need to be aware of the service for it to be effective
    Positive change, however, still need strong communication links between GP’s and employers.
  • It will not be suitable for all employees, including those who are unlikely to be successful at a phased return to work, those who are terminally ill, those in hospital or those in an acute phase of their illness.
  • It is not yet clear how many professionals will be employed by the service and most consultations will be done by phone rather than in person, so it is not clear how thorough the assessments will be.
  • Employers should update their sickness and absence policies to make employees aware of the service.
  • Guidance from the Government is available-

Zero-hours contracts

  • Exclusivity clauses in zero-hours contracts are unenforceable.
  • Employers can no longer prevent employees from holding other jobs by inserting such clauses into zero-hours contracts.

The Employment Rights Act 1996 was amended by Section 153 of the Small Business, Enterprise and Employment Act 2015 which received Royal Assent on 26 May 2015. A new part 27a was inserted.

  • Employers cannot insert such clauses into new contracts and need to ensure that any existing contracts are amended.
  • Employees now have more control over their income and working hours.
  • Employers may look to avoid the restriction by reducing the hours of such employees or by inserting clauses into contracts stating that employees have to be available to work when required.
  • There is no enforcement measure behind the ban, so if it is breached employees have no way remedy.
  • Other negative aspects of zero-hour contracts still exist.
  • Employers feel that the ban goes against the flexible nature of zero-hours contract which is their purpose and which benefits both employers and employees.

Deduction from Wages (Limitation) Regulations 2014

  • A two-year limit on deduction from wages claims in the Employment Tribunal has been introduced.
  • The Working Time Regulations 1998 do not give employees a contractual right to paid holiday.
  • The Regulations apply to any sums payable to employees in connection with their employment. These include fees, bonuses, commission, holiday pay or other emolument, whether payable under contract or otherwise.
  • Other claims, such as for statutory sick pay, maternity, adoption pay etc on will not be affected by the two-year limitation.

Applies to all claims lodged on or after 1 July 2015

  • Widely drafted regulations which appear to apply to nearly all claims for unauthorised deductions from wages.
  • Regulations have tackled some business concerns
  • The Regulations do not offer any protection in relation to back-pay in claims existing prior to 1 July 2015.
  • Breach of contract claims are not affected by the Regulations, however, a claim for holiday pay under the Working Time Regulations cannot be a breach of contract.
  • Employers will still need to ensure that they check contracts prevent breach of contract claims.
  • The enforceability of the Regulations may be challenged as they apply to all claims and not just those relating to holiday pay.
  • Need to be considered alongside the cases of Plumb v Duncan Print Group UK EAT/ 0071/15 and Patterson v Castlereagh Borough Council NITT/1793/13

National Minimum Wage penalties

The penalty for breaching the NMW has increased to £20,000 for each underpaid worker.

26 May 2015

  • The aim of the penalty is to act as a deterrent to employers.
  • There is no cost to compliant businesses.
  • The employer is required to pay the employee the unpaid wages plus the penalty which is calculated as 100% of the total amount they have underpaid to all workers subject to a maximum of £20,000.
  • Employers can still appeal to an Employment Tribunal.
  • The arrears have to be paid within 14 days and if not then an additional penalty can be charged and a prosecution brought.