Employment Law Update August
Courts rule against 12.07% calculation for part time holiday pay
The Supreme Court have ruled that the 5.6 weeks’ annual leave entitlement under the Working Time Regulations 1998 should not be reduced pro rata for staff who do not work standardised hours. (Harpur Trust v Brazel [2022] UKSC 21 (20 July 2022)). This means that employers will no longer be able to use the 12.07% calculation to cap their annual leave, in a decision that will affect many part time employees and workers including those on zero hour or casualised contracts.
The Court ruled that that holiday entitlement under the WTR 1998 is 5.6 weeks a year for a worker on a permanent contract, regardless of the hours worked. Pro-rating may occur at the start and end of employment but should be on the basis of time passed not work carried out.
“Part year” workers must now have their holiday calculated using average hours worked over the previous 52 weeks, disregarding any weeks not worked.
Although this means that such staff may receive more holiday entitlement than their full time colleagues, the Supreme Court have determined this to be an accurate interpretation of the Working Time Directive.
Time limits for unfair dismissal claims – what is a “reasonably practical” delay?
The recent Employment Appeal Tribunal judgment in the case of Cygnet Behavioural Health Ltd v Britton means employees making unfair dismissal claims outside the three month time limits may face difficulties in proving that delay was “reasonably practical.”
In the above case, the claimant, B, argued that a combination of dyslexia, mental health problems and lack of knowledge about the time limit, led him to submit his claim 62 days after the statutory time limit. The Employment Tribunal accepted that argument and allowed the claim to proceed, but the Respondent appealed against that judgment, claiming the ET decision was “perverse.”
The Employment Appeal Tribunal determined in the Respondent’s favour, that as the Claimant had been communicating with ACAS, his employer and a statutory regulator throughout the process, there was no good reason why he would not have been capable of discovering the time limit and bringing his claim in time. The ET decision was therefore overturned.
A further comment made by Justice Cavanagh may affect claimants who argue that the lockdown contributed to a delay:
“Even if the pandemic meant that it was not easy to speak to somebody, it makes no sense, in my judgment, that the claimant would not have been able to type a short sentence into a search engine and to seek information about unfair dismissal time limits, or to ask an acquaintance by email to search for that information.”
However, this decision relates only to unfair dismissal claims. Employment Tribunals have a wider discretion to extend the time limit for discrimination claims if it is felt to be “just and equitable” to do so.
https://www.bailii.org/uk/cases/UKEAT/2021/2020_000972.html
Menopause in the Workplace – Government Response
The long awaited response to the independent report Menopause and the Workplace (published in November 2021) has finally arrived, with some encouraging decisions and others that will disappoint campaigners.
The establishment of a UK Menopause Taskforce with work and employment as its central focus is to be welcomed as is the appointment of a new Women’s Health Ambassador, Dame Lesley Regan, who will take part in the Task Force and work with the Minister for Employment on work-related issues. The Government have also said that one or more Menopause Employment Champions, as recommended by the Report, will be appointed to work with the Taskforce.
It is also accepted by the Government that the financial impact of menopause on individuals, business and society more generally, should be quantified and an appropriate methodology will be sought.
However the Government have made clear that the Equalities Act 2010 will not be extended to include menopause as a protected characteristic. Instead the focus will be on raising awareness with employers and employer organisation and encouraging voluntary workplace support. It remains to be seen how much impact the new measures will have without the threat of statutory protection.
Update on Employment Status
The thorny question of employment status is back in the news. The Government have published a response to the 2018 consultation following the Taylor Review recommendations, which unfortunately leaves the situation much as before. No legislative solutions are on offer, but non-statutory guidance has been issued to try and improve clarity and help determine employment status. The issue of course is not simply one of employment rights but of tax obligations as well. There is a strong argument for greater alignment of tests for determining tax and employment status but unfortunately no agreement on how that could be achieved. In the current post-pandemic landscape the Government has taken the view that now is not the right time to focus on alignment, at least until the economy is on a stronger footing. Legal challenges on employment status can therefore be expected well into the future.
Employment (Allocation of Tips) Bill
The Government has not, as was expected, introduced legislation to ensure that tips go to workers in full. Instead, support is being given to a Private Member’s Bill on the issue brought by Dean Russell MP (The Employment (Allocation of Tips) Bill). If passed by Parliament the Bill will amend the Employment Rights Act 1996 to ensure that those working in the hospitality industry (including agency workers) are paid all tips, gratuities and service charges in full and by the end of the subsequent month. The Bill also requires tips to be distributed fairly amongst workers either via the employer or through an independent tronc. https://publications.parliament.uk/pa/bills/cbill/58-03/0021/220021.pdf
Mulberry’s can provide you with expert advice and guidance on any employment issue. Contact Zoe on 0203 858 9765 or email zoe@mulberryssolicitors.com.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
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