Case roundup

This week’s case roundup

"Last in first out" selection allowed
Messrs Blatchfords solicitors v Berger and others, IRLB 673, EAT

Blatchfords had offices in Holborn, South Harrow and Croxley Green but for
business reasons decided to close Holborn and transfer its work to Croxley
Green. At the time Blatchfords had three cashiers, including Sims, but only one
was needed.

For redundancy selection purposes the cashiers were pooled and the principle
of last in first out (LIFO) was applied. Sims was made redundant and
successfully claimed unfair dismissal, the tribunal finding that an employer
does not act reasonably if its only selection criteria is LIFO.

Blatchfords successfully appealed to the EAT. The tribunal had wrongly
substituted its view for that of Blatchfords. The pool was correct and although
length of service was usually only one of a number of selection criterion it
was wrong to say no reasonable employer would rely on it and nothing else.
Provided the principle of LIFO was not used as merely a means of unfairly
eliminating a particular employee, it was lawful.

Attendance allowances, National Minimum Wage and deductions
Laird v Stoddart, IRLR 591, EAT

Laird was paid £3.27 per hour plus an attendance allowance of 70p per hour.
When the NMW was introduced in April 1999 Stoddart, without consulting Laird,
increased his hourly rate to £3.67 but reduced the attendance allowance to 30p.

On 12 May Laird signed his new contract, under protest, and subsequently
claimed that he was not receiving the NMW and that by reducing his attendance allowance
Stoddart had made an unlawful deduction from his wages. Both claims failed and
Laird appealed to the EAT.

In relation to the NMW claim the tribunal was correct. While attendance
allowances must be ignored when determining whether the NMW has been paid,
there is nothing to prevent an employer consolidating part of an attendance
allowance into the basic hourly rate to meet the requirement to pay the NMW.

But when such consolidation takes place it is the effect the new package has
on allowances which must be considered, not the ultimate take home pay.
Attendance allowances count as wages for the purposes of unlawful deductions
and Laird’s allowance had been reduced which was unlawful.

The question of whether the reduced allowance was an unlawful deduction
after Laird signed his new contract was referred back to tribunal. The EAT
pointed out that the fact Laird had signed his new contract under protest did
not show he had not consented to the change and he may have affirmed it by
continuing to work.

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