Employment Bulletin – September 2016

Lidl loses appeal over union recognition for warehouse workers

The supermarket chain Lidl has lost its appeal over union recognition for some of its warehouse workers.

The issue arose after the GMB union applied for collective bargaining rights for "warehouse operatives working in the following sections: goods in, goods out and selection" at one of Lidl's regional distribution centres.

The company rejected the application so the union applied to the Central Arbitration Committee (CAC) to determine whether its proposed bargaining unit was appropriate.

The CAC panel rejected Lidl's argument that the degree of fragmentation involved would not be compatible with efficient management. It decided that the union had proposed an appropriate bargaining unit.

The company appealed on the basis that the CAC had misconstrued the law and that the ruling was inconsistent with the desirability of avoiding small fragmented bargaining units.

However, the High Court upheld the decision. It held that the CAC had considered the issues thoroughly and there had been no misinterpretation of the law. It had given reasons for finding why the proposed unit was compatible with effective management and there was no reason to overturn that decision.

58% rise in number of complaints about maternity leave issues

Citizens Advice has reported a 58% rise in the number of women experiencing employment problems related to maternity leave.

Over the last 12 months, the number of mothers seeking advice about their rights have risen from 2,099 to 3,307.

The most common problems women report are:

• Redundancy after they tell their employer they are pregnant or while on maternity leave
• Health & safety assessments that are inadequate or not carried out
• Hours reduced against their will
• Problems following return to work after maternity leave.

Women have extensive protection relating to maternity leave and employment rights. Employers need to ensure they have the correct policies in place to prevent mistakes that could lead to expensive discrimination claims.

Designers prevent employee from working for rival company

A design company has been granted an injunction preventing a former employee from working for a rival business for a set period.

The employee had worked with the designers as a draughtsman engaged in product development.

His contract contained restrictions preventing him working for named competitors for six months after termination of his employment and protecting the claimant's confidential information and inventions.

Nevertheless, he resigned and started working for one of the named competitors. The designers alleged that he was in breach of the post-termination restrictions and applied for an injunction.

The rival firm opposed the application on the basis that it had recruited the draughtsman for his technical knowledge and expertise and not for his knowledge of the design company's products.

The court found in favour of the designers. It held that it was very likely that the draughtsman had been exposed to confidential information and/or trade secrets in his product development role.

That information was in his head and could not easily be removed or compartmentalised. It was almost impossible for him to ignore what he knew in the course of his work.

An interim injunction was therefore granted to last until the issues could be dealt with at a full hearing.

Record number of employers shamed over minimum wage

The government has published its longest ever list naming and shaming employers who have failed to pay the National Minimum Wage (NMW).

The list names 197 companies across a range of sectors including football clubs, hotels, care homes and hairdressers. Between them they owed their employees £465,291 in arrears because of longstanding underpayment of wages.

Since the scheme was introduced in October 2013, 687 employers have been named and shamed, with total arrears of more than £3.5m.

Business Minister Margot James said: "The government is making sure everyone gets paid the wages they are owed - including our new, higher, National Living Wage. It is not acceptable that some employers fail to pay at least the minimum wage their workers are entitled to.

"We'll continue to crack down on those who ignore the law, including by naming and shaming them."

The National Living Wage of £7.20 per hour for workers aged 25 and over was introduced in April this year. It has meant a pay rise of more than £900-a-year for someone previously working full time on the National Minimum Wage.

For workers under the age of 25, the National Minimum Wage still applies.

The current rates are:

• £6.70 for workers 21 and over
• £5.30 18-20 years
• £3.87 for 16-17 years, who are above school leaving age but under 18
• £3.30 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

These rates are due to increase in October.

Employee wins appeal over compensation for unfair dismissal

An employee has won an appeal against a tribunal's decision not to award him compensation even though it decided he had been unfairly dismissed.

The issue arose because the tribunal had found that the dismissal was unfair due to the lack of consultation before making him redundant. However, it decided not to award any compensation on the basis that he would have been dismissed by the same date even if a fair procedure had been followed.

The Employment Appeal Tribunal (EAT) held that the decision was not sustainable in law.

It said the date until which the employment would have continued but for the dismissal was distinct from evaluating the chance that, if a fair procedure had been followed in that exercise, the employee would have survived it and continued in employment.

When considering the latter issue, the tribunal had to envisage that the consultation that was not carried out, which fairness required, would have been carried out in good faith and with an open mind.

That required an evaluation based on evidence of what alternatives to redundancy the employer would have considered if it had acted fairly. In those circumstances, it was appropriate to remit the issue to the same tribunal for reconsideration.