Tribunal fees ruled unlawful

The ruling by the Supreme Court that the Fees Order prevented access to justice and is unlawful is being cited as ‘the most important judgment in employment law in the last fifty years’. In the light of this ruling, employers should:

  1. Review their policies and procedures to ensure they are robust and comply with current legislation.
  2. Ensure staff are properly trained to adhere to the implemented policies and procedures.
  3. assess the risk arising from their current workforce, in particularly employees who are currently on sick leave, have on-going grievances and/or discipline issues.

You can find more information here.  

Case update

Restrictive covenants must be tailored to the individual

Egon Zehnder Ltd v. Mary Caroline Tillman

As has often been proved in court, restrictive covenants are only as good as the drafting: many employers discover, rather too late, that covenants they sought to rely on are, in fact, unenforceable due to poor drafting at the outset. However, in this particular case, the judge ruled that a restrictive covenant imposed on a junior employee when first employed was both valid and proportionate, and upheld the six-month non-compete clause in her contract. This was in spite of the fact that her contract had never been updated at any point even after several promotions. When Ms Tillman resigned in 2017 to join a competitor before the six-month period expired, Egon Zehnder successfully sought to invoke her non-compete clause. The court ruled that, as Ms Tillman was an exceptional employee and had been treated as such by her employer, it was correct to uphold the restrictive clauses in her contract. However, the court did note that had she not proved to be as talented as expected, the restrictive clauses may not have been appropriate.

Holiday pay can take voluntary overtime payments into account

Dudley Metropolitan Borough Council v. Willetts and others

A recent ruling by the EAT has determined DMBC must take into account some of their employees’ voluntary overtime payments when calculating their holiday pay. However, the court was at pains to point out that it is ‘normal pay’ which must be taken into account which, by definition, is regular remuneration. In this particular case, a group of employees involved in housing maintenance claimed that a number of different payments should be taken into account including out of hours’ standby and call-out allowance as well the voluntary overtime. The court accepted that the first two elements constituted part of the employees’ normal remuneration and then went on to confirm that the voluntary overtime should also be counted because of its regular nature. It was the regularity of this work and the period over which it had been paid that counted. This decision is binding and although it brings some clarity to the issue of holiday pay, employers will still need to consider their remuneration obligations on a case by case basis. 

About the author

Ian Besant Partner

Ian is head of the employment & HR team. He advises on the full range of employment law issues as well as conducting his own advocacy before the Employment Tribunal and has particular expertise in Employment Appeal Tribunal cases.