Tom Stenner-Evans
Posted on 5 Jan 2015

Holiday Pay / Employment Tribunal Fees / Unfair Dismissal

Holiday Pay – a Limit on Back Pay Claims Deduction from Wages (Limitation) Regulations 2014

Many employers have been concerned by the recent decision in Bear Scotland v Fulton, which confirmed that holiday pay should include non-guaranteed overtime, particularly given the potential for back-pay claims from employees.

In a move which employers will welcome, the government has introduced legislation which limits all unlawful deduction from wages claims to two years before the claim is lodged. This removes the chance of employees bringing claims for long-term retrospective holiday pay, thereby limiting the impact of the Bear Scotland case on businesses.

However, the new regulations only apply to claims presented on or after 1 July 2015, so there is still time for employees to lodge their claims before the regulations come into force. Many employers have started to include overtime payments in holiday pay in the hope of breaking continuity and limiting claims that way. If you have concerns about how to approach the issue of holiday pay, please contact our Employment team.

Case Update

R (UNISON) v The Lord Chancellor and another (No 2) [2014] EWHC 4198 (Admin)

The High Court has rejected Unison's second challenge to the introduction of Employment Tribunal fees. It was not persuaded that the recent drop in claims was as a result of potential claimants' inability to pay the fees. The Court felt that the statistics showed that claimants were unwilling to pay fees but not necessarily that they were unable to do so.

The Court also felt that Employment Tribunal fees were justified and had clear and legitimate aims: discouraging spurious claims, encouraging alternative dispute resolution and transferring some of the Tribunal's running costs to its users.

Game Retail Ltd v Laws UKEAT/0188/14

The Employment Appeal Tribunal ('EAT') has confirmed that dismissing an employee for offensive, personal tweets on Twitter was potentially fair.

The Facts

Game Retail Ltd ("Game") uses Twitter for marketing and communicating with customers and each of its stores has its own Twitter profile. Mr Laws was employed as a Risk and Loss Prevention Investigator and also had his own personal Twitter account. His account did not specifically associate him with Game, but he followed the accounts of various stores and they in turn followed his account.   In 2013, Mr Laws posted potentially offensive tweets on his account, which were not work-related. He was dismissed for gross misconduct.

The Judgment

The Employment Tribunal initially upheld Mr Laws' unfair dismissal claim on the basis that the tweets were not work-related and were essentially posted for private use. However the EAT disagreed and allowed Game's appeal. The EAT held that Game had a legitimate concern that the offensive tweets were being seen by those stores following Mr Laws' Twitter feed and that they might be viewed by customers. It did not matter that the tweets were not work-related and did not relate to Game. The EAT also appeared to suggest that Twitter has a more public nature than Facebook, making dismissals relating to offensive tweets, as opposed to a Facebook status, easier to justify.

Tips for Employers

Although the EAT did not give general guidance on social media, this case is useful in showing that dismissals related to social media can be fair. Employers should give clear guidance to employees on the use of social media, ideally in the form of a social media policy, and should specify the sanctions they might face if they fail to follow this guidance.