News: Collective Redundancies – when does duty to consult arise?

The EAT has held that an obligation to collectively consult about proposed redundancies is triggered when an employer makes a provisional decision to close its workplace, even if the final decision is not made until later.

The implications of this ruling means that employers have a duty to collectively consult before a final decision has been made to make employees redundant. If the employer has provisionally decided to close or restructure the whole or part of its business, then they need to start a collective consultation process (even if alternatives are still being considered) where they are proposing to dismiss 20 or more employees.

It is therefore important for employers to be aware of any management discussions surrounding changes to the business, as if there are clear plans to close or restructure the business, as if certain targets are not met in the future then this can be enough to trigger the duty to collectively consult, even if the final decision has not been made.

Mobile workers first and last journeys count as working time

Employers with Salespeople or mobile engineers are hoping that a forthcoming European Court of Justice (ECJ) decision provides some clarity as to when their mobile workers’ travel between customers or clients counts as working time.

In advance of a final ECJ judgement, Advocate General Yves Bot has said that employers must treat journeys by workers between customers or clients as working time.

In his opinion, the Advocate General has said that this should include the first and last journeys of the day where the worker goes straight to or from the customer or clients’ place of business.

The Advocate General made it clear that he believes that, where travel is an integral part of the job, all journeys to customers or clients count as working time.

The key factor in his opinion was whether or not the workers are “at the disposal of the employer”. He concluded that, when workers travel from home to their first customer or client and from the last customer or client to their home, the workers are not outside the scope of their employers’ management power.

In our opinion this is a helpful indicator for employers and managers about what the scope of working time may encompass.

Please contact Einon HR for further advice and support.

Tribunal watch – Unfair dismissal for smelling of alcohol at work

An employment tribunal has held that an NHS worker was unfairly dismissed after a colleague reported him for smelling of alcohol at work, without further evidence that he was unfit for work. The healthcare assistant was investigated following a report that he had come to work smelling of alcohol. He maintained that he had only had a few drinks the night before. The tribunal highlighted that there was no evidence of impairment to function. No one had expressed any concern about the claimant’s behaviour, or suggested that he had been acting drunk. The employment tribunal held that smelling of alcohol at work was not by itself sufficient to constitute gross misconduct justifying dismissal under the trust’s disciplinary procedure and substance misuse policy. The tribunal also found that it was unreasonable for the claimant’s refusal to participate in an occupational health referral to be added to the reasons for dismissal.
McElroy v Cambridge Community Services NHS Trust

Zero-hour contracts

Under the provision in the Small Business, Enterprise and Employment Act the government has prohibited the use of exclusivity clauses in zero-hour contracts. This means that employers who do not guarantee staff any hours of work, cannot prevent them from working for another employer. An employer could face legal action under this provision. Care therefore needs to be taken if you use Zero-hour contracts, for further information and help please contact Einon HR 07764 948898


From the 1st June 2015
Under the auto-enrolment programme small businesses employing up to 30 staff will gradually be obliged to offer their staff pensions. This includes people who only employ one person. The Pensions Regulator which oversees the programme says those who do not comply could receive a fine of £400
Under auto-enrolment, all employees over the age of 22 who earn more than £10,000 a year will now have the right to a workforce pension, unless they decide to opt out.
Anyone who took on an employee for the first time after 1st April 2012 will not have to pay pension contributions for another two years.