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Employment Law Journal: July/August 2014

The Small Business, Enterprise and Employment Bill fails to give zero-hours workers any enforceable rights, contends Catherine Rayner

The Small Business, Enterprise and Employment Bill received its first reading in the House of Commons on 25 June 2014, and will receive its second reading on a date to be announced. The bill contains a number of employment law provisions, including legislation to make exclusivity clauses in zero-hours contracts unenforceable. This article examines the proposed provisions and the issues which they aim to address.

Guy Lamb comments on the RMT’s failed challenge to the UK’s strike laws

Employment law has often been the battlefield on which socio-political issues have been played out in the courts. One such issue that has had particular longevity is the tension between the UK’s approach to regulating strike action versus the unions’ desire to enshrine a right to strike in the UK legal system.

Calculating holiday pay has just become even harder, thanks to the latest in a line of ECJ cases on the issue, reports Stefan Martin

The Working Time Regulations 1998 continue to throw up cases which cause headaches for lawyers and employers alike. Previous decisions of the European Court of Justice (ECJ) on the legislation have looked at the impact of sickness on the accrual of holiday under the regulations and on whether becoming sick while on holiday creates a right to additional accrual of holiday entitlement. In the cases reviewed below, the ECJ has looked at the effect of an employee’s death on rights to holiday pay and also at the tricky issue of how holiday pay should be calculated when commission payments form part of an employee’s pay.

Lewis Silkin

Steven Lorber discusses a recent ECJ decision showing the difficulties the EU’s data protection regime causes employers

Responses to the European Court of Justice (ECJ) ruling on search engines and data protection rights (Google Spain SL v Agencia Española de Protección de Datos [2014]) have focused on an individual’s right to be forgotten. But the impact of the judgment is potentially much wider.

Louise Mason examines a recent ruling on whether employers need to adjust absence policies to avoid treating disabled staff unfairly

In Griffiths v Secretary of State for Work and Pensions [2014], the Employment Appeal Tribunal (EAT) considered the issue of reasonable adjustments to absence management policies for disabled employees. It concluded that the duty to make reasonable adjustments did not require varying trigger points for formal action under such policies. However, the decision is potentially open to challenge and employers should be wary of relying on it too heavily.

CMS

A recent Supreme Court ruling has finally laid to rest the difficult issue of whether an LLP member is a worker, explains Sarah Ozanne

The issue of employee and worker status has been a much vexed one, with considerable case law dedicated to discussion of the subject. Both of these terms are defined under s230 of the Employment Rights Act 1996 (ERA) but it is not always clear whom each category covers. One stream of case law on this topic has been on the status of partners in LLPs and whether they qualify as either employees or workers. In the most recent case in this area, Clyde & Co v Bates van Winkelhof [2014], the Supreme Court has determined that a former partner at Clyde & Co had been a worker for the purposes of the ERA. This entitled her to relevant protections, including under the whistleblowing provisions.

Employers must be wary how they communicate their intentions to the workforce in light of a recent ruling, warn Annabel Gillham and Jemima Coleman

Employers engaging in consultation with their employees will invariably seek to explain the rationale for their proposals in some detail; this is partly to ensure that the consultation is meaningful (to comply with statutory requirements) but also to get employees to buy-in to the new proposal. The employer may well feel compelled to give some assurance that the proposals will provide stability, continued viability for the business or some other future benefit.

As the World Cup reaches its climax, Kenny Scott looks at a recent ruling on whether a referee was an employee of the Scottish Football Association

Correctly establishing whether or not an individual is an employee is critical for clarifying their rights and the obligations associated with them. We consider the recent decision of the Employment Appeal Tribunal (EAT) in Conroy v Scottish Football Association [2014] and the tests for determining employment status.