A summary of October’s employment law cases, which include an interesting look at how not to exclude staff on maternity leave, how to properly handle transgender workers, calculating holiday pay where employees are subject to compulsory overtime and the use of contract clauses to retain employees where discretionary bonus payments are payable which do not amount to restraint of trade.
This month we look at several aspects of the Equality Act through the lens of religious discrimination, race discrimination and harassment. We also take a look at how one should properly calculate holiday pay so as not to fall foul of the Working Time Regulations.
- Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
- Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
- Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
- Holiday Pay: How to calculate holiday pay on termination of employment
Religious Discrimination: EAT remits Facebook posts case and sets out principles underpinning proportionality assessment
In Higgs v Farmor’s School  EAT 89, the EAT held that in dismissing a direct religion or belief discrimination claim brought by a Christian employee following complaints relating to her social media posts which criticised the nature of sex education in schools (including gender fluidity and same sex marriage) the employment tribunal had erred in that it failed to:
- conclude that there was a close or direct nexus between the employee’s Facebook posts and her protected beliefs
- determine the reason why the employer acted as it had, and
- assess whether the employer’s actions were prescribed by law and necessary for the protection of the rights and freedoms of others
The proportionality assessment, which the tribunal had not carried out, was necessary to determine whether the employer’s actions were because of, or related to, the manifestation of the employee’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation.
The EAT also set out basic principles that underpin the approach adopted when assessing proportionality of any interference with rights to freedom of religion and freedom of expression to assist tribunals and to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.
Race Discrimination: Judgment against qualifications body held not to be Meek-compliant
The case of General Medical Council v Karim  EAT 87 concerned a claimant doctor who was subject to an investigation by his employer. That led to a referral to the General Medical Council (GMC). The employment side of things was settled when he resigned and a settlement agreement was entered into. However the GMC matter continued. The claimant then made a claim of discrimination by the GMC as a qualifications body, making various complaints in relation to its handling of the matter.
The employment tribunal upheld some (but not all) of the complaints of direct race discrimination on the basis that the burden of proof had passed but not been satisfied.
The GMC appealed to the EAT.
Allowing the GMC’s appeal, the EAT held, in summary, that the tribunal had failed to engage with key aspects of its case, and so produced a decision which was not Meek-compliant; and reached some findings and conclusions at different points that were conflicting or contradictory.
Harassment: Claimant must be aware of the unwanted conduct in order for it to amount to harassment
In Greasley-Adams v Royal Mail Group Ltd  EAT 86 the EAT had to consider (amongst other grounds of appeal) whether an employment tribunal had failed in its analysis of the claimant’s claims of harassment under section 26 of the Equality Act 2020 by not having regard to conduct of which he was not aware.
The EAT, dismissing the appeal, held that only conduct of which the claimant was aware could amount to harassment. This was because:
- the perception of the person claiming harassment was a key and indeed mandatory component in determining whether harassment had occurred
- as confirmed by the relevant authorities, if there was no awareness, there could be no perception.
Holiday Pay: How to calculate holiday pay on termination of employment
In Connor v Chief Constable of West Yorkshire Police  EAT 42 the EAT considered the provisions of a ‘relevant agreement’ reached in relation to holiday pay on termination of employment and how these compared to the calculations provided for by the Working Time Regulations 1998 (‘WTR’) and found it not to be compatible.
In this case the Claimant’s employment contract stated that holiday pay on termination of employment would be calculated based on 1/365th annual salary. This meant, on that upon his termination, he received a lower payment for accrued holiday than that which he would have received using the calculation set-out in the WTR.
The tribunal held that the 1/365th calculation was a valid ‘relevant agreement’ under Regulation 14(3) (which states that the amount of holiday pay due on termination of employment is either that which would be prescribed if the formula set out in the WTR were applied or such other sum which is stated to be payable on termination of employment pursuant to a ‘relevant agreement’) and that therefore there had been no unlawful deduction from the claimant’s wages.
The EAT disagreed. They held that a ‘relevant agreement’ under Regulation 14(3) on the payment of holiday on termination of employment cannot result in a payment which is lower than that which would be calculated using the method set out in the WTR. The Claimant was entitled to the higher amount. . Regulation 14 provides a method of calculation for the purposes of regulations 13 and 13A for an incomplete leave year. The entitlement to annual leave, and payment, are not modified by regulation 14. The regulation provides a formula of calculation which promotes the right to annual leave and the attendant payment for holiday. The phrase “such sum as may be provided for the purposes of this regulation in a relevant agreement” refers to any agreement that provides a formula which is in keeping with the rights provided for in the regulations.
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This month’s review covers a range of issues. We look at sex discrimination involving a lack of a private toilet for a female employee, how an employee who worked term time should have had her holiday pay calculated to take account of the national minimum wage, a potential revision of couriers’ holiday pay following the Pimlico Plumbers case, how not to deal with a flexible working request, and an appeal to reconsider a dismissal related to the pandemic.
- Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
- Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
- Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
- Indirect Discrimination: Rejection of flexible working request is application of PCP
- COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working
Sex Discrimination: Risk of seeing man at urinal was direct sex discrimination
In Earl Shilton Town Council v Miller  EAT 5, the EAT has rejected Earl Shilton Town Council’s case that it did not treat ex-clerk Karen Miller worse than men in its shared toilet arrangement. The council launched its appeal after the employment tribunal ruled in 2020 it failed to provide appropriate toilet facilities to ex-clerk Karen Miller for almost two years between 2016 and 2018. The tribunal concluded that Ms Miller had been treated less favourably because she ran the risk of seeing men using the urinal. The council argued in its appeal that Ms Miller was not treated less favourably than men because they were just as much at risk of being seen at the urinal as she was of seeing them. The Judge Tayler rejected its case, concluding that Ms Miller’s sex discrimination claim did not fall apart just because a man could also make a similar complaint. It was enough to establish that Ms Miller had a worse experience than a man would seeing another man at the urinal, he said.
‘Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals’, Judge Tayler said. ‘While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourably.’
The judgment details how the council, which was based in a Methodist Church that it shared with a playschool, only had access to a female toilet that was in the school’s half of the building. Female staff would have to check with playschool workers that no children were using the toilet first because of child safety concerns, according to the judgment. The toilets were not always immediately accessible as a result. The council offered her the use of the men’s toilet, which has a single cubicle and a multi-person urinal. But there was no lock on the external door, creating the risk that a woman might walk in on a man using the urinal or leave the cubicle to find a man using it. The council also contended in its appeal that the sharing arrangements could not be discriminatory because they were caused by child safety concerns.
Judge Taylor ruled that the arrangements were not good enough, citing the lack of a sanitary bin and suggesting that installing a lock on the toilet door may have made it compliant.
‘The facilities were inadequate for the claimant because she is a woman’, he said. ‘Accordingly, the safeguarding issue could only go to motive and could not prevent direct discrimination being established.’
Pay: Contractual terms of salaried term-time worker entitled her to NMW for 52 weeks of the year
In Lloyd v Elmhurst School Limited  EAT 169, the claimant was employed by the respondent, a private school, as a teaching assistant. She initially worked two days a week and then this was increased to three days a week (21 hours per week). She was paid monthly in equal instalments. The claimant’s contract did not set out hours of work. However, it stated that during term time she would work as directed by the Head Teacher and be entitled to the usual school holidays as holidays with pay. The respondent calculated the claimant’s salary based on 40 weeks of the year. The claimant brought a claim in the employment tribunal for unlawful deduction from wages based on an underpayment of the National Minimum Wage (NMW). She argued that her hours over the year should be calculated as 52 weeks x 21 hours, and not 40 weeks x 21 hours. If her method of calculation was accepted as correct there was an underpayment of the NMW.
A salaried worker is entitled to receive the NMW for their ‘basic hours’ which, by virtue of regulations 3, 21(3), 22(5) of the NMW Regulations 2015 (NMWR 2015), are determined by the terms of their contract of employment, even if those basic hours are greater than the hours actually worked. On the facts of this case, even though the claimant only worked term-time as a teaching assistant, she was entitled to the NMW for 52 weeks of the year rather than just her working weeks plus statutory holiday, because her contract provided that ‘… she was entitled to the usual school holidays as holiday with pay’, according to the EAT.
The employment tribunal dismissed the claimant’s claim. It found that the claimant worked term-time only; when the claimant accepted her job it was on her and the school’s understanding that she would work term time only; the contract did not explicitly set this out but this was consistent with clause 3(b) of the contract; the wording of clause 4 of the contract did not mean that these hours were deemed to be working hours for the purposes of the NMW legislation; the wording ‘the usual school holidays as holidays with pay’ did not mean that the 12 weeks of school holiday should be paid at the same rate as when the claimant was working/on statutory leave and included in her basic hours worked calculation for NMW purposes.
The claimant appealed to the EAT. In relation to the construction of ‘basic hours’ in NMWR 2015, it was not in dispute that the claimant was a permanent employee, who was employed throughout the school year and who was engaged in ‘salaried hours work’ for the purpose of NMWR 2015, nor that the claimant met the four conditions in regulation 21, including the second condition in regulation 21(3) that she was entitled to be paid in respect of a number of hours in a year and that those hours necessarily could be ascertained from her contract.
The principal point of dispute on statutory interpretation was which non-working hours of absence or holiday count towards basic hours. The claimant argued that, while it depends on the individual contract, basic hours include all the hours which are paid as contractual holiday. While the respondent argued that the only periods of absence which count towards basic hours are those which are absences from days when the worker would otherwise be working.
The EAT allowed the appeal. It agreed with the claimant on the issue of statutory interpretation and held that the code, Act and regulations were a poor guide to what hours are to be treated as basic hours, and the ascertainment of the claimant’s ‘basic hours’ depended on the meaning of her contract: the statutory question was not answered by looking at the hours which she in fact worked. Her annual basic hours, as ascertained from her contract, would then fall to be divided by 12 to give the hours of salaried work for each one-month pay reference period. It held that as a matter of general principle, some periods of fully paid absence count towards the ‘basic hours’ of salaried hours work, e.g. if the worker’s contract said they were entitled to a salary of £400 a week for a 40-hour week and to seven weeks’ holiday at full pay their annual basic hours would be based on a multiplier of 52 weeks.
In relation to the individual grounds of appeal, the EAT held that the tribunal erred in examining the hours the claimant in fact worked, to which it added her statutory entitlement to paid annual leave; failing to ascertain the number of hours in the year for which the claimant was entitled to salary in accordance with her contract, as to which the meaning of clause 4 of her contract was of central importance; examining whether the claimant was engaged in ‘working activity’ outside term-time, rather than asking whether those periods of contractual holiday could form part of her basic hours; inconsistently including statutory leave but excluding contractual leave; and relying regulation 27 (whether a worker is ‘available at or near a place of work’ for the purpose of doing work) and not to regulation 21(3), and, in doing, so wrongly focused on when the claimant was in fact engaged in working or working activity.
The EAT remitted the matter to a freshly constituted employment tribunal for the determination, in light of its judgment, of all the issues relevant to the claimant’s claim of unlawful deduction from wages.
Holiday Pay Claims: Tribunal decision remitted following Court of Appeal decision in Pimlico Plumbers
In Alston and 44 Ors v The Doctors Laboratory Ltd and Ors  EAT 13 a group of couriers have successfully applied to the EAT to set aside by consent an employment tribunal decision on an application of time limits in holiday pay claims under the Working Time Regulations 1998 (WTR 1998) which had ruled that they could carry over paid holidays between years only if they had not already taken unpaid leave, after arguing that a Court of Appeal decision voided the employment tribunal judgment on this point.
Forty-five claimants, 38 of them represented by trade union Independent Workers of Great Britain (IWGB), argued before the EAT that the Court of Appeal’s decision in Smith v Pimlico Plumbers Ltd in February 2022 removed restrictions on how much paid leave they are due. The Honourable Mrs Justice Eady, current President of the EAT, agreed, saying that an employment tribunal’s 2020 decision in the couriers’ case ‘cannot stand and must be set aside’. The couriers ‘were and remain entitled to carry over any untaken paid annual leave’ until their contracts end or the employer, The Doctors Laboratory Ltd, allows them to take the paid holidays they have accrued, Mrs Justice Eady ruled.
It is one of the first cases to rely on the Pimlico Plumbers precedent, which allows people who were wrongly denied paid holiday to claim up to 5.6 weeks’ worth of pay—the equivalent of statutory annual leave—for each year of their employment. For people who have been misclassified as self-employed rather than workers, the precedent removed a previous two-year limit to compensation claims—now, they can stretch back as far as 1996.
The Doctors Laboratory, the UK’s largest independent clinical lab, did not give its couriers paid holiday until 2018, when it conceded they were entitled to up to four weeks a year as ‘limb (b) workers’, a legal category of worker under section 230(3) of the Employment Rights Act 1996.
The company argued before the employment tribunal in 2020 that unpaid leave the couriers had taken before 2018 should be subtracted from their holiday entitlement going forward.
The tribunal agreed the couriers’ right to carry over leave year-on-year ‘exists subject to qualification’.
Employment Judge Elliott ruled that unpaid leave was ‘capable of amounting to annual leave’ because it fulfils the health and safety objective of the European Working Time Directive, which is the root of UK working time law. But the couriers’ counsel argued before the EAT that Pimlico Plumbers allows workers to accumulate paid holiday if they have taken unpaid leave for reasons beyond their control.
The couriers and The Doctors Laboratory remain at odds over whether the couriers count as workers. If so, they could be entitled to the full 5.6 weeks’ statutory annual leave. Judge Eady remitted the matter to the employment tribunal for further directions.
Indirect Discrimination: Rejection of flexible working request is application of PCP
In Glover v (1) Lacoste UK Ltd (2) Harmon  EAT 4 the EAT dealt with the question of when a provision, criterion or practice (PCP) can be said to have been ‘applied’ to an employee, for the purposes of a claim of indirect discrimination under section 19 of Equality Act 2010. The EAT held that once an application for flexible working (eg to work on a limited number of days only each week) is determined, following an appeal process, the PCP (eg to be fully flexible as to working days) has been applied, and may therefore have put the applicant at a disadvantage, for the purposes of an indirect discrimination claim. That is the case even if the applicant is away from work when the request is made and never returns to work. It remains the case even if the employer subsequently agrees to the terms of the original application.
COVID-19: Sales rep wins bid to dispute firing over COVID-19 home working
The EAT has agreed to hear arguments from a salesman fired after asking to work from home or be granted a leave of absence during the COVID-19 lockdown, that the employment tribunal failed to consider his belief that these were reasonable steps to avoid infection. The EAT granted Francesco Accattatis permission to challenge a decision in favour of his former employer Fortuna Group, which sells protective medical equipment like face masks and gloves. The company said Accattatis had failed to ‘support and fully comply with company policies’, which included working from its office in Enfield, North London, when it fired him in April 2020, approximately a month into the first national coronavirus lockdown. But Accattatis argued a 2021 employment tribunal ruling only considered the company’s belief that it was not possible for him to work from home or be placed on furlough. ‘To focus exclusively on the respondent’s view of the situation was an error’, his counsel, told the EAT. ‘I don’t see that the respondent’s view of whether something is feasible, or whether it was feasible, was a relevant matter’.
Under the Employment Rights Act 1996 (ERA 1996), it is unlawful to fire an employee for refusing to return to a workplace because they believed there was a ‘serious and imminent danger’ they couldn’t reasonably avoid. Whether the steps the employee took were appropriate to avoid that danger must be judged ‘by reference to all the circumstances, including, in particular, his knowledge and the facilities and advice available to him at the time’.
The employment tribunal ruled Accattatis’ requests were not appropriate steps because the company ‘reasonably and justifiably concluded’ that he could not work from home or claim furlough.
But Judge James Tayler agreed at a hearing on 9 February 2023 that it is arguable the tribunal misinterpreted the law and allowed the appeal to proceed. Accattatis will also be able to argue that the reason Fortuna gave for his dismissal was not properly distinguished from managers’ low opinion of him.
He had asked his bosses several times about working from home, which he felt was possible. Fortuna and the tribunal disagreed that Accattatis was needed in the office to manage deliveries of equipment and use specialist software, the 2021 judgment noted. He sent several emails throughout April 2020 while on sick leave for a suspected case of Covid-19 urging managers to place him on furlough. ‘I can assure you I already received confirmation from several sources that [the] coronavirus job retention scheme is easily accessible, by any company still actively trading during this time of emergency, without any downside to it’, one email reads. His counsel said this demonstrated Accattatis’ belief that furlough was possible and that urging Fortuna to reconsider was an appropriate step. ‘It’s the manner of the demands, that they were impertinent, that was the reason for the dismissal’, he said.
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As we welcome in the fresh new year, there is a need to focus on helping employees with health issues as the NHS struggles more than ever. We highlight three areas where employers can make a real difference. Other challenges this year come from union strikes, and the government looks to balance the rights of strikers with continuing to provide minimum levels of service in specified public services in a new bill before the Commons, along with an update on the Neonatal Care Bill which covers parental leave. With people working more flexibly consultations have started on proposals to pro-rata holiday entitlement for part-year and irregular hours workers.
- Employee Health: Three wellbeing challenges employers will need to tackle in 2023
- Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
- Parental Leave: House of Commons publishes update on Neonatal Care Bill
- Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
Employee Health: Three wellbeing challenges employers will need to tackle in 2023
Website, People Management, published an article on 20 January 2023 by Imogen Cardwell (Clinical Operations Director at PAM OH) promoting a proactive approach from employers to address health challenges facing employees including soaring cancer rates, increasing work-related illness and NHS delays. You can read the full article [here] but below is a summarised version.
She reports that with an NHS backlog of more than 7.2 million, it will impact more than a million employees, with 15 per cent of employees affected being forced to go on long-term sick leave, and 40 per cent of cancer patients are having to wait more than the 62-day target for life-saving cancer treatment . At the same time, two-fifths of employees believe work has made them sick, primarily due to work-related stress and musculoskeletal (MSK) issues. All of which means the NHS backlog, rising cancer cases and increasing work-related illness are the three major wellbeing challenges employers will need to address in 2023.
Challenge 1: Supporting employees with cancer
Employers will need to do more to support terminally ill employees to stay in work, so long as it is safe to do so. This is both a legal duty, under the Equality Act 2010, but also a moral duty. Integral to this is supporting employees by making the reasonable adjustments needed to allow them to remain in work, such as allowing flexible working or changing working hours for a period to account for someone’s needs.
Managers should be encouraged to talk to employees about what they think would help them and an occupational health clinician can also advise on appropriate adjustments that would work for the individual and business, both now and as the employee goes through important milestones and treatments.
Challenge 2: Ongoing NHS delays
Before the pandemic, employees would typically get signed off work by their GP until after they had been treated and had some post-surgery rehabilitation, which might have been around 6 weeks. With wait times of up to a year, this might not be acceptable going forward. Be aware of the risk of financial hardship, and long-term absence which has been shown to lead to lack of confidence, isolation and an increased risk of future worklessness.
Again, reasonable adjustments to help keep people in work will be critical going forward. Workplace wellbeing initiatives or occupational health advisors might also be able to support the individual with linked conditions, for example, losing weight to reduce joint pain and need for an operation.
Challenge 3: Soaring work-related illness
Days lost to work-related ill health cost billions per year, primarily work-related stress, depression or anxiety and MSK issues. What drives these issues? Employers should review their health data, including referrals to occupational health and health screening insights. As well as conduct ‘employee listening’ with surveys designed to uncover the root causes of work-related stress. This can often be addressed with workshops and manager training based on the HSE’s Management Standards for reducing stress, which look at everything from workload to working relationships.
In the case of soaring MSK issues, workplace risk assessments can be used to identify where employees are setting themselves up for future injury. While body mapping workshops, where employees place stickers on body maps to reveal where they have injuries or niggles, can also be used. These encourage employees to share tips and advice with one another on how they’re using the same equipment, or doing the same job, in a way that prevents injury. As it’s often the smallest behavioural changes that make the biggest difference.
A free guide to Health at Work is available from PAM Wellbeing here.
Trade Unions: House of Commons library publishes briefing on Strikes (Minimum Service Levels) Bill
The House of Commons (HoC) Library has published a research briefing on the Strikes (Minimum Service Levels) Bill, which was introduced to the House of Commons and given its first reading on 10 January 2023. The Bill enables regulations to be made by the Secretary of State at the Department for Business, Energy & Industrial Strategy (after consultation) setting minimum levels of service in specified public services so that those services do not completely shut down when there are strikes. For these purposes a strike does not include an overtime ban or a call-out ban. The Bill would grant the Secretary of State the power to set ‘minimum service regulations’ that could set minimum service levels for workers during strikes in the following sectors:
• health services
• fire and rescue services
• education services
• transport services
• decommissioning of nuclear installations and management of radioactive waste and spent fuel
• border security.
The Bill grants employers the power to give a ‘work notice’ to a trade union about any strike that affects a service subject to the Bill. The notice would have to specify which workers the employer to continue work in order to ensure service levels required by the minimum service regulations. Where a union fails to ‘take reasonable steps’ to ensure compliance with the work notice it loses protection from liability. Furthermore, the Bill removes automatic protection from unfair dismissal for any employee who strikes contrary to a valid work notice.
The second reading of the Bill was due to take place on 16 January 2023.
Parental Leave: House of Commons publishes update on Neonatal Care Bill
The House of Commons (HoC) has published a briefing paper on the Neonatal Care (Leave and Pay) Bill 2022–23, which was introduced by Stuart C McDonald MP as a Private Member’s Bill on 15 June 2022.
The Bill would introduce neonatal care leave and statutory neonatal care pay. As these are both new rights, they require the Minister to pass regulations to bring them into force. Parents whose children spend at least one week in neonatal care would qualify for the day one right to neonatal leave. The duration of the leave and when it must be taken would be set by regulations. It would be a minimum of one week and the period in which it could be availed of would last a minimum of 67 weeks starting from the date of the child’s birth. Employees with at least 26 weeks continuous service can avail of neonatal care pay during periods of neonatal leave. While limit and duration of pay would be set by regulations the minimum limit that could be claimed would be a minimum of 12 weeks.
There have been calls since 2014 for such a bill to be introduced. Following a consultation, the Government committed to introduce neonatal care and pay in March 2020. This was reiterated by the then Labour Markets Minister Paul Scully when he was responding to a parliamentary question on 25 May 2022. All MP’s who spoke during the second reading of the Bill were in favour of it passing. Similarly, all contributions at committee stage were in favour of the Bill and all amendments were accepted. However, concerns over the length of time the government were taking to implement the Bill were also raised.
Holiday Pay: BEIS consults on proposals to pro-rata holiday entitlement for part-year and irregular hours workers
The Department for Business, Energy & Industrial Strategy (BEIS) is conducting a consultation on proposals to pro-rata holiday entitlement for part-year and irregular hours workers based on the annual hours they work. The consultation follows the recent Supreme Court judgment in Harpur Trust v Brazel  IRLR 67.
As part of the consultation, BEIS proposes to introduce a holiday entitlement reference period for part-year and irregular hours workers. BEIS wants to ensure that holiday pay and entitlement is directly proportionate to the time part-year and irregular hours staff are working. The consultation also aims to understand how entitlement is currently calculated for agency workers and how the consultation proposal could be implemented.
The consultation may be of interest and impact employers, workers, business representative groups, unions, and those representing the interests of groups in the labour market.
Further information regarding the Calculating holiday entitlement for part-year and irregular hours workers Consultation can be accessed here. The Proposal to simplify Holiday Pay and Entitlement Consultation Impact Assessment can be accessed here.
If you would like any additional information, please contact Anne-Marie Pavitt or Sophie Banks on: firstname.lastname@example.org