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  1. Knowing what a piece of legislation means in practice isn’t always the easiest thing to do, hence why we all need to hire legal experts to advise us. But at least reading the piece of legislation itself shouldn’t be too difficult – it’s just words on a page approved by Parliament.

    Ok, it can get a little more tricky to read an amended piece of law, as you’d need to look at the original text, and then the amendments, which may well say something like “amend section 2 by deleting the words after the second comma, and inserting blah, blah, blah.”, but even that can be made easier with reference books that do all the hard work for us, producing what is the latest version.

    What about the Working Time Regulations 1998 though? They’ve be subject to some amendments over the years, but are at least available in reference books & online in the current, amended, form.

    Except that is for Regulation 16(3)(e): it’s not even clear if such a subsection exists! (You can read Regulation 16, with (3)(e) included as an optional extra here.)

    Confused? Well, a hearing at the Employment Appeal Tribunal (EAT) this week is the latest stage in a long-running tribunal claim, Lock v British Gas, that is set to determine this question – at least unless there is another appeal. The question for the EAT is whether, as an employment tribunal ruled, the current Working Time Regulations are compatible with EU law in regards to holiday pay – specifically commission, as workers that earn commission should have this considered as part of the regular pay, when calculating holiday pay.

    To explain this point a little further, the way the EU laws work is that the EU issue a “directive” to member states. The directive will say something along the lines of introduce a law that does X, Y, and Z. Member states (including the UK) will then introduce laws that are intended to provide for the directive into local law. The question in the Lock case is whether the UK government did do that when it introduced the Working Time Regulation in 1998.

    When the case first went before an employment tribunal, a question that the tribunal couldn’t decide was whether or not the Working Time Directive should be read to include commission payments as part of regular pay. That question was referred to the European Court, who said it should – matter resolved.

    Except the employment tribunal then had to decide whether the Working Time Regulations (remember, the Regulations are the locally introduced law; the directive is the EU’s instruction on what to cover in the local law) actually did incorporate what it was meant to: whether the law as written could be read to allow for the inclusion of commission payments as part of regular pay. The employment tribunal ruled that it could, with the insertion of Regulation 16(3)(e), which it then assumed to exist in the Regulations. And that is the subject of this week’s appeal.

    The EAT could rule that the Regulations cannot be read to include 16(3)(e) or anything similar, in which case the government will be obliged to introduce amendments to the Regulations to make them compliant with the directive, and employers will continue to be in the dark about what to do with commission payments in the meantime. Or it could rule that the employment tribunal was correct to say that the Regulations could be read to allow for the European Court’s judgment, and either agree with 16(3)(e), making this binding on future tribunals (and of course, employers too), or substitute this with its own form of words – again none of which will ever have been printed on a page of legislation that was approved by Parliament.

    The hearing is on Tuesday & Wednesday, but a judgment may take some time after that. And until then, even reading what is or isn’t actually on that piece of paper that may or may not have ever actually got approved by Parliament will remain a challenge. And employers will continue possibly to leave themselves liable to claims for not paying holiday pay, uncertain about their current legal obligations – and their advisers can only speculate on what these may be.
  2. For staff with less than 2 years’ service, it’s a common assumption that they can be dismissed with nothing more than contractual notice – or a week, if nothing more is in writing… and we’re all too happy to express that view when an employer seeks views on these matters.

    So say for arguments sake that an employer wanted to dismiss after ~11 weeks service. Easy it seems, dismiss (with notice or PILON), and move on.

    Of course there is the minor issue of an unfair dismissal where no minimum service is required – things like trade union membership, health & safety, discrimination. These don’t prevent a fair dismissal, but they would if the grounds for dismissal are for one of the many reasons automatically unfair reasons.

    It is the minor issue of discrimination – or at least that is what a claim has been brought under – in the case of Kibirango v Barclays Bank plc. This minor complication of defending a tribunal with less than two years’ service shouldn’t greatly complicate a case, the bank no doubt professional and able to show that they had valid reasons for dismissal (I’m not being bias towards the bank, but at least that’s the indication to date).

    … and perhaps they will eventually show that they had valid reasons for dismissal, nothing to do with race discrimination.

    But even without having got to the stage where they present their defence to the case (well they have, but that judgment got set aside on appeal), the case has already cost Barclays in excess of £15,000 – after they thought they won, and had costs in the sum of £15k awarded to them!

    And the saddest thing for the defendant (the respondent to give them their proper title in employment tribunal proceedings) is that it wasn’t anything they could have controlled that meant their successful defence of the claim was set aside on appeal; they didn’t argue the defence on a flawed technicality that passed the tribunal’s scrutiny, or try to discredit the claimant’s argument in a manner that led the tribunal to misapply the law. To the contrary, the blame lies with the Employment Judge alone, because they didn’t give reasons why the tribunal favoured some witness evidence supporting Barclays defence over the claimant’s version of events around the time of the dismissal – the reasons weren’t what is known as “Meek compliant”.

    We don’t know the reasons the employment tribunal favoured the evidence from the Barclays manager that made the dismissal, but this is not uncommon – for a tribunal to favour one sides testimony over another’s. In fairness, it’s often necessary when two conflicting versions of events are given in evidence. It could be that Mr Kibirango was an evasive witness, uncertain in his recollections, or perhaps his evidence wasn’t consistent. Or maybe it was none of those things, both witnesses were accepted as being as truthful as possible as far as they recalled events, and the tribunal simply determined on balance that with documents prepared at the time of dismissal that supported what Barclays said happened when, that the tribunal had no preference between the witnesses, but leant towards Barclays due to the supporting written evidence. But because the tribunal omitted in its judgment to explain why, Barclays has already incurred costs of at least £15,000, and for that has made virtually no progress in defending a dismissal of an employee that worked for them for about 11 weeks. A very expensive lesson to learn, with nothing even established that Barclays were in any way at fault*.

    Just something else to consider when dismissing staff with less than two years’ service.

    To be fair, in practice it’s not all bad for most employers, as this case is an exception rather than the norm: for those of us that have to sit through them, tribunals giving their judgments can actually bore us to tears while ensuring they are Meek compliant, often answering things like Burchell and Iceland Foods Ltd (two important cases for disciplinary or capability dismissals), even when these cases are never mentioned in any closing arguments, and so well known to anyone that would take an interest in these matters. Alas, they have to just to be Meek compliant, and some of us can read between the lines so far in advance of the fateful words that “the claims fail” (this can be 45 minutes or more, on a simple case that's only lasted a few hours!), I will invariably pass notes to my clients that “we’ve won”, and “don’t wait for me, just hurry to the bar and have a large G&T waiting for me”!

    Justice being done, but also being seen to be done with a comprehensive explanation of why – even if that cost £15,000 for a minor oversight in this case.

    *It could be argued that Barclays, the successful party, could have applied for the judgment to be reviewed, expanded, to ensure this was Meek compliant, but as well as telegraphing a potential line of appeal to the claimant, it’s not really something I believe advocates really consider when a judgment is handed down – we just don’t think about such minutiae when considering whether the judgment is a sound one.

    **”Joe Meek On Speed” was a song recorded by Rain, a North London band, in the early 90s if I recall correctly. Limited CDs pressed, and never released wider, and I don't believe ever reached Spotify.