Employment Bulletin – February 2017

Employer wins appeal over redundancy payments

An employer has won an appeal against having to make redundancy payments to employees who were unwilling to relocate to a new workplace.

The employer had operated from two offices that were about 90 minutes' travelling time apart. The employees' contracts of employment contained a mobility clause obliging them to work at a different location if required unless exceptional circumstances prevailed.

When the employer announced its intention to close one office and transfer its work to the other, the employees objected on the basis that the additional travel was unacceptable.

Neither of them attended work at the new office after the move and, following disciplinary hearings, the employer dismissed them for serious misconduct.

The Employment Tribunal ruled that the dismissals were unfair and that the employees were entitled to redundancy pay.

The Employment Appeal Tribunal (EAT) upheld the unfair dismissal claims on the basis that the mere existence of a mobility clause did not mean that it was lawful and reasonable for an employer to invoke it. The tribunal had considered whether the instruction to relocate had been legitimate, in the sense that it was a valid contractual requirement. It had concluded that, in the employees' circumstances, it was not.

However, the EAT upheld the employer's appeal against statutory redundancy payments. The employer had believed that it was reasonable to require the employees to attend the new office. Although there might have been a redundancy situation, the employer had dismissed the employees for failing to comply with what it considered to be a reasonable requirement. That meant that no statutory redundancy payment was due.

Airline 'is obliged' to negotiate with union over pilot rostering

An airline has been told that it is obliged to negotiate with trade union representatives about rostering arrangements for its pilots.

Jet2 had accepted that under employment law, it had to recognise the British Airline Pilots Association for the purposes of collective bargaining about the core issues of "pay, hours and holidays". However, it claimed rostering was part of its 'Scheduling Framework' and was outside of these core issues.

The High Court found in favour of Jet2.

However, the Court of Appeal has now overturned that decision. It held that there was nothing in the phrase "negotiations relating to pay, hours and holidays" to suggest that it covered only proposals that would give rise to individual contract rights.

Jet2's arguments about the proposed threat to operational flexibility confused the subject-matter of the negotiations with their outcome. To say that the airline was obliged to negotiate with the union about rostering arrangements was not to say that it was obliged to agree to any such arrangements if it regarded them as damaging to its business.

It was open to the airline to decline to agree to any elements in the framework that it regarded as objectionable.

The rostering proposals contained in the Scheduling Framework related to "pay, hours and holidays" and therefore properly formed the subject of collective bargaining.

Employers pay out more than £83,000 in tribunal penalties

Employers have had to pay out more than £83,000 under the tribunal penalty regime that came into force last year.

Firms now face penalties of up to £5,000 for non-payment of tribunal awards under the Small Business, Enterprise and Employment Act. The regime applies to judgments made on or after 6 April, 2016.

The Department for Business, Energy and Industrial Strategy has since issued 60 penalty notices following 164 warning notices to employers for failure to comply with employment tribunal orders to pay compensation to claimants.

A government spokesman said: "Failing to pay employment tribunal awards is unacceptable and the government is committed to tackling the issue. That is why last year we introduced penalties for employers who don't pay claimants what they are owed."

Meanwhile, the latest figures from the Ministry of Justice suggests claims to tribunals are continuing their steady increase. The number of claims fell from an average of 48,000 per quarter in 2012/13 to about 26,500 in 2013/14. The decline followed the introduction of tribunal fees of up to £1,200 in July 2013.

However, the figures started to rise again in 2015 and there were a total of 31,545 claims in the third quarter of last year, suggesting employees are becoming increasingly willing to take legal action if they feel they have been treated unfairly.

Mothers to be given greater protection against redundancy

The government says it wants to provide mothers and pregnant women with better protection against the threat of redundancy.

The Department for Business, Energy and Industrial Strategy is to hold a public consultation on the issue and consider new ways to ensure women are not subjected to discrimination at work.

It follows a report by the Women and Equalities Select Committee on pregnancy and maternity discrimination.

Business Minister Margot James said: "We are determined to tackle pregnancy and maternity discrimination and a key part of that is making sure new and expectant mothers are supported and treated fairly by their employers.

"While most businesses abide by the law, some do not. There should be zero tolerance of discrimination against pregnant women, or women who have just given birth, that's why we are committing to making sure new and expectant mothers have sufficient protections from redundancy.

"I'd like to thank the Women and Equalities Select Committee for shining a light on this issue which is a key priority of mine."

The government has also committed to considering what further guidance can be provided to both courts and claimants about existing flexibilities in the employment tribunal system to extend the time limit for bringing a case.

The 3-month time limit for bringing a case can be extended when the independent employment tribunal decides it is "just and equitable" to do so.