Tuesday, 30 June 2015

How much pay can an employer withhold for a day's strike by a salaried striker?

Pay Deductions for Strike


  How much pay can an employer withhold for a day's strike by a salaried striker?
1/260th held the Court of Appeal in Hartley v King Edward VI College, not 1/365th.

The appeal arose from a County Court claim by three striking teachers, alleging that their employer had withheld more pay than it was entitled to in response to a day's strike. This was not a deduction from wages case as a 'deduction' presupposes an employer not paying a sum which has been earned. Here the sum was never earned, the dispute being how to calculate it.

The College based its calculation on a notional 5 day week, 52 weeks a year, making the sum 1/260th of annual salary; the teachers argued that the nature of their contract and section 2 of the Apportionment Act 1870 meant that pay accrued equally from day-to-day, and the sum to withhold was the smaller 1/365th. The Court held that the sum withheld was to be calculated on the basis of the contractual terms, and noted that although the Apportionment Act applied, it did not require the principle of equal daily accrual of salary to be applied: 'provided it is plain from the terms of the contract that the principle of equal daily accrual is not intended to apply, that should be sufficient to exclude the principle even though there may be difficulty in resolving precisely how the pay is related to the work performed' (para. 43).

It was noted that the cost implications of the judgment across the education sector would be around £300,000 per strike day.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary

When employees’ religious beliefs clash with gay customers’ rights: five key cases

When employees’ religious beliefs clash with gay customers’ rights: five key cases

A Northern Ireland court has found that a bakery discriminated against a customer when it refused to make a cake with a slogan supporting same-sex marriage. Stephen Simpson rounds up five more examples of cases in which individuals objected to providing a service to a gay person on the basis of religious beliefs. 

The decision on 19 May 2015 in Lee v Ashers Baking Co Ltd and others, which has become known as the “gay cake case”, is just the latest in a line of cases examining the clash between the right to hold religious beliefs and protection against sexual orientation discrimination.
A number of the leading cases in this controversial area are employment-related. The trend has been for courts and tribunals to find that employers are entitled to take steps to ensure that services are delivered on an equal opportunities basis, even if these steps conflict with an employee’s religious beliefs.

Christian registrar disciplined over civil partnerships refusal

Ladele v London Borough of Islington (Court of Appeal)
This ground-breaking case arose following the introduction of civil partnerships in 2005.
Ms Ladele was a registrar for the London Borough of Islington, which required all its registrars to add the carrying out of civil partnership ceremonies to their duties. However, Ms Ladele was unable to reconcile her religious beliefs with the new duty and refused to carry out these ceremonies.
The council instigated disciplinary proceedings threatening her with dismissal for a failure to comply with its “dignity for all” policy.
The Court of Appeal found that the employer’s treatment of Ms Ladele did not amount to direct religious discrimination. It also upheld the decision that the council’s policy was justified and the employer had not indirectly discriminated against her.
Ms Ladele subsequently took her case to the European Court of Human Rights (ECHR) in Eweida and others v United Kingdom. The ECHR found that there was no violation of Ms Ladele’s human rights

Christian counsellor dismissed over same-sex couple beliefs

McFarlane v Relate Avon Ltd (Court of Appeal)
The Ladele case was followed soon after by a claim against a counselling service brought by a Christian counsellor.
Mr Mcfarlane was trained to be a psychosexual therapist and his role was extended to giving advice on couples’ sexual problems.
When he refused to give advice to same-sex couples because of his religious beliefs, his colleagues complained and he was suspended. He was later dismissed for failing to uphold the employer’s equal opportunities policy.
Mr Mcfarlane’s claim was rejected by the Employment Appeal Tribunal (EAT). He was refused permission to appeal by the Court of Appeal, which confirmed Ladele as the leading case on the clash between the right to hold religious beliefs and protection against sexual orientation discrimination.
Mr Mcfarlane subsequently took his case to the European Court of Human Rights (ECHR) in Eweida and others v United Kingdom. The ECHR found that there was no violation of Mr Mcfarlane’s human rights.

My Comment:  I'm  indebted to that excellent tomb  "Personnel Today"  for their excellent material
read the original here

Monday, 22 June 2015

Working Time - Travel Time to First Job of the Day

Does the time that workers (who are not assigned to a fixed or habitual place of work) spend travelling from home to their first customer, and from the last customer back to their homes, count as 'working time' for the purposes of the Working Time Directive?       

Yes, suggested Advocate General Bot in Federación de Servicios Privados del sindicato Comisiones Obreras.

According to the Advocate General, there are three aspects to 'working time': being (1) at the workplace, (2) at the disposal of the employer, (3) engaged in work duties (C-151/02 Jäger).

For peripatetic workers: aspect (1) was fulfilled because travelling is an integral part of the job, such that the workplace cannot only be considered as performing work at clients' premises; aspect (2) was fulfilled because routes and destinations are determined by the employer who could at any point modify the instruction; and aspect (3) was fulfilled because, again, travelling is integral to the peripatetic work.

The Advocate General saw no distinction between travel between jobs, which was agreed to be working time, and to and from the first and last jobs, which was not. Further, since working time and rest time are mutually exclusive concepts, and in line with CJEU case law (C-303/98 Simap) rest time must not involve obligations vis-à-vis the employer, the travel time had to be working time.

The recommendation of the Advocate General is not binding, but it is usually followed by the ECJ.

My Thanks to the excellent Daniel Barnett site for this newsworthy item.  see them at:

Friday, 19 June 2015

Statutory Employee Entitlements Pocket Guide, free download

Free download PDF pocket guide on Statutory Employee Entitlements.   All the information you need currently on  SSP,  SMP, SPP,  ShPP,  Minimum wage etc.   all in one handy place!               sign up for my monthly employment law newsletter and get the pocket guide immediately.    If you don't find the monthly newsletter informative,   you can always unsubscribe.
go to my website home page for the pop-up form.    www.paulmurrayhr.co.uk 

Wednesday, 3 June 2015


My periodic newsletter on all things employment law related that I think you should be aware of.
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Hello  << Test First Name >> ,
        Well,  it's all over,  we have a new parliament and already some of the manifesto promises are starting to emerge.  It's early days of course, some details were expected,  tweaks to the issue of Zero Hours Contracts for instance,  increased fines for abuse of the national minimum wage regulations  etc, others less so,  ie changes to child care premises.  I'll shall provide more information on these pages as they emerge.
              Read on for details, and, as always, call me or mail me if you have any concerns or need more information about this edition's content.

Kind regards,     Paul 

First The News:    Rules banning exclusivity clauses in Zero Hours contracts come in to force from today

The rules, which were introduced by the last government, come into effect with the Small Business, Enterprise and Employment Act 2015, which was passed today. Exclusivity clauses were used to prevent employees on zero-hours contracts from working for another employer. Announcing the plans for the ban in June 2014, former business secretary Vince Cable said the policy was an attempt to crack down on “unscrupulous employers”. CBI director for employment and skills Neil Carberry welcomed the ban. He said: “Banning exclusivity clauses in zero-hours contracts is a proportionate response to tackling examples of poor practice.” However, he cautioned against “further regulation” that might damage the UK’s “flexible labour market”, which he called “an important success story of our economy, benefitting employers and employees alike”. - See more at:

Newsflash:   New maximum penalty for breach of national minimum wage regulations

Section 152 of the Small Business, Enterprise and Employment Act 2015– this increases the penalty which can be imposed on an employer that underpays its workers in breach of the National Minimum Wage law. The maximum penalty of £20,000 can now be calculated on a per worker basis rather than on a per employer notice basis.

New Rules to protect whistle blowers
Section 149 – this section enables regulations to be made to prevent discrimination against applicants for NHS roles on the grounds they have made protected disclosures (blown the whistle). No regulations have yet been made and consultation on this is expected.

Definition of "small business" to be changed

Section 33 (certain parts) and 34 – these enable the Secretary of State to make regulations about the meaning of a ‘small business’ (currently a headcount of fewer than 50 and a specified threshold for turnover and balance sheet) and a ‘micro business’ (currently a headcount of fewer than 10 and a specified threshold for turnover and balance sheet).

My comment: These last two items are not likely to affect us too much, the definition of small business may mean certain exceptions to complex regulation,  and I don't know anyone who pays less than the minimum wage!


Holiday Pay Tribunal decision to be appealed


Further uncertainty for employers grappling with the issue of holiday pay and commission payments now beckons with the news that tribunal decision in Lock v British Gas Trading is to be appealed.
My Comment:  this item really does affect most business,  as we all pay holiday pay of course,  you are affected if your employees earn commissions or regular overtime. read more
Sajid David:    No fresh look at easier dismissals
Business Secretary Sajid Javid has ruled out returning to proposals to make it easier for firms to sack staff using "no fault" dismissals.
The Beecroft report on employment law in 2012 suggested small firms be able to dismiss people without a reason, in return for paid compensation.        But the plan, which would have cut unfair dismissal cases, was blocked in the coalition by the Lib Dems.         Mr Javid told the Andrew Marr Show: "I won't be looking at that again."       The newly appointed business secretary, whose job was held by Lib Dem Vince Cable in the last parliament, said the  Enterprise Bill in Wednesday's Queen's Speech would propose a series of measures to cut red tape.              "What we will be doing, though, is looking at deregulation, taking it even further”.
This from the BBC news site  visit

 My Comment:  this was never going to have legs,  in the face of European legislation we would have been in breach of all sorts of directives.  


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Health& Safety Myths

A light hearted look at some of the idiotic things we hear.
Case 360 - DIY Store unable to give customer product advice:
The enquirer was in a DIY store and asked for some advice on which spotlights to buy as her electrician had given her a connection block size and she wanted to know where to look for the connection box. She also wanted some general advice on what the difference was between various spotlights on the shelf. The store assistant said he could not give any advice due to health and safety because if he did and then the enquirer relied on it and something went wrong he would be liable.

Panel opinion

Nothing in health and safety at work regulations prevents shop assistants providing product information.


Case 358 - Clothes store staff not allowed scissors at the counter:
Enquirer and their girlfriend were shopping in a chain clothing retail store. She bought a blazer and wanted to wear it home so asked for scissors to cut the tag off but was advised that for 'health and safety' reasons they were no longer allowed to keep scissors at the counter.

Panel opinion

This is a clear cut example of poor customer service hidden behind a health and safety excuse.

 The information contained in these pages is an HR overview and not intended to be comprehensive legal advice, always seek specific qualified advice before taking any action that could lead to litigation.   Equally, were we have provided links to external web pages, we are not responsible for the content of other sites.