Thursday, 19 September 2019

Does Redundancy Pay Contribute to the 25k Cap on Contractual Claims?

No according to His Honour David Richardson of the EAT in Uradar v Lancashire Care NHS Foundation Trust [2019] UKEAT 0301_18_2006

The rationale for the decision can be distilled (very briefly) down to the fact that there were two very different causes of action; a statutory AND a contractual claim.

Interestingly, at paragraph 28 the statutory cap is derided for being anachronistic;

As we leave this case we would add the following comment. The statutory cap in the 1994 Order has remained unchanged for a quarter of a century. It seems only necessary to pass a statutory instrument to provide for a higher cap. The powers are now contained in Sections 3, 8 and 41 of the Employment Tribunals Act 1996. This case and the case of Eden to which we have referred, demonstrates that at its present level the cap is capable of producing real injustice. In order to bring the claim for a contractual redundancy payment before a Tribunal with relevant specialist experience, the two employees had to forego substantial parts of their contractual entitlement. If the statutory cap had been increased in line with inflation they would not have suffered these losses. The statutory cap is also out of step with the very much wider powers of the ET and in other areas of its jurisdiction.

Hopefully we shall see an adjustment of the statutory cap soon at least to level in step with inflation.

Friday, 5 July 2019

ECJ holds that employers must record daily working time

In the case of FederaciĆ³n de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE, ECJ 14.5.19 (C-55/18).The ECJ considered the extent of employer's record-keeping obligations in relation to the provisions of the EU Working Time Directive on maximum weekly working time and daily and weekly rest.

Article 31(2) of the Charter of Fundamental Rights of the European Union (‘the EU Charter’) provides: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’ These rights are given effect by the EU Working Time Directive (No.2003/88), which requires Member States to take the necessary measures to ensure (among other things) that workers are entitled to a minimum daily rest period of 11 consecutive hours (Article 3); a minimum uninterrupted weekly rest period of 24 hours (Article 5); and a limit on average weekly working time of 48 hours (Article 6).

The ECJ concluded that, in order to ensure the effectiveness of the rights provided for by the Directive and enshrined in Article 31(2) of the EU Charter, Member States must require employers to set up an ‘objective, reliable and accessible system’ enabling the duration of time worked each day by each worker to be measured.

Wednesday, 26 June 2019

Attempt to enforce Re-engagement remedy with an injunction fails

It is a well trodden path that employment tribunals may order an unfairly dismissed employee to be re-engaged. It has also been accepted that the employer's failure to comply results in (not a particularly hefty) additional compensatory award.

The attempt by one clever lawyer to enforce that re-engagement order via an injunction has flopped in The Court of Appeal see Mackenzie v The University of Cambridge.

Lord Justice Underhill swiping the appeal 'over the boundary' commented (para 33):

The obligation is one that the statute does not intend should be specifically enforceable (s117 ERA1996) : the only remedy for non-compliance is the additional award. If that means that it is a rather unusual form of "order", so be it.