Voluntary Overtime and Holiday Pay

Voluntary Overtime and Holiday Pay

Voluntary overtime should be Included in calculation of statutory holiday pay

The recent case in the Employment Tribunal of Brettle v Dudley Metropolitan Borough Council held that that voluntary overtime should be included in the calculation of statutory holiday pay.

Previous cases have decided that in certain circumstances compulsory overtime ought to be included in holiday calculation but this recent case considered the specific question of voluntary overtime.

As the case was only heard at the Employment Tribunal level it is non-binding but does assist in predicting how higher courts might rule on this question in the future.

The employment tribunal endorsed legally non-binding comments made in the earlier Bear Scotland case that, in the absence of agreement to the contrary, the four weeks’ holiday under the Working Time Regulations 1998 should be deemed to have been taken before the additional 1.6 weeks imposed by UK law is taken.

ACAS Code and SOSR

New Employment Tribunal Rules

Norbrook Laboratories (GB) Ltd v Shaw

The ACAS code of practice and SOSR dismissals

The Acas Code of Practice on Disciplinary and Grievance Procedures Code contains recommendations on how to deal with disciplinary matters and grievances. In a successful unfair dismissal case at an employment tribunal, failing to follow the Code can often result in a ‘fine’ for the employer – an uplift of up to 25% on the compensation which they must pay to the employee. The Code explicitly states that it is applicable to dismissals for conduct and performance and that it is not applicable to dismissals for redundancy or where a fixed term contract expires without renewal. However, the Code does not state whether it applies to dismissals made for some other substantial reason (SOSR) and so this has always been unclear.

In the recent case of Phoenix House Ltd v Stockman, Ms Stockman was dismissed for an SOSR reason. Following Ms Stockman putting in an unsuccessful grievance concerning her treatment during a restructure and receiving a written warning for an incident of misconduct, the employer maintained that the employment relationship had broken down irrevocably and dismissed her. The Employment Tribunal held that the employer’s decision to dismiss had been unreasonable and also said that the employer had not followed the ACAS code of practice, meaning that Ms Stockman was entitled to an uplift on her compensation. The Tribunal reasoned that if the ACAS code was interpreted sensibly, it should also apply to SOSR dismissals.

The employer appealed the case, and the EAT agreed that the dismissal was unfair but disagreed with the uplift awarded. The Employment Appeal Tribunal (EAT) held that there should be no 25% uplift to an unfair dismissal award for dismissals made for SOSR for breakdowns in the working relationship. This case follows Holmes v QinetiQ Ltd, in which it was held that the ACAS code does not apply to dismissals for genuine ill health where there is no issue concerning poor performance.

This news may be welcomed by employers but the Phoenix case also emphasises that it can be difficult to dismiss an employee for an SOSR reason, especially a breakdown in working relations or a personality clash, and that this should be seen as a last resort. It is important to note that although the uplift is not applicable to SOSR dismissals, certain aspects of the Code still are, for example giving the employee a fair hearing, the right to be accompanied and the right of appeal.

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Banning Headscarves and Discrimination

Banning Muslims’ headscarves at work may not be discriminatory

Following a recent case, the European Court of Justice (ECJ) has ruled that it is sometimes acceptable for employers to refuse to allow female Muslims to wear headscarves in the workplace. This is on the important condition that the employers implement a company-wide policy of banning all religious and political symbols, including crucifix necklaces, turbans and clothing which states allegiance to a political party rather than singling out any one belief. The employer would also have to justify why it believed that allowing such expression of opinion would negatively affect its business.

In the case of Achbita and Another v G4S Secure Solutions NV, Ms Achbita, a Muslim in Belgium, decided after three years’ employment as a secretary that she wanted to wear a headscarf at work, as well as outside of work. Her employer refused to allow it, she wore it anyway and was dismissed. The following day, the Company updated its dress code to ban any signs of political, philosophical or religious belief. An advocate general of the ECJ stated, “While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace.” This opinion is not binding and final judgement in this case is expected later in 2016.

We are also awaiting the judgement of a similar case: Bougnaoui and Another v Micropole Univers. In this case, a French Muslim engineer insisted on wearing her headscarf during client visits, despite her employer’s insistence that she removed it after clients complained.

Employers are still advised to proceed with caution and to bear in mind the distinction between a religious belief (which is protected by law) and conduct (which may sometimes be modified to suit the needs of the business). It is also interesting to note that those employees without a religion or political affiliation could be subject to discrimination for their lack of beliefs.


Travelling Time is Working Time

Travelling Time is Working Time

Travelling time is working time

Following the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA Case C 266/14 ECJ, time spent by mobile workers travelling from their home to their first appointment and from their last appointment to their home now counts as travelling time. Time spent travelling between appointments also counts as working time but this was previously the case.

This means that travelling time counts as part of workers’ daily and weekly working hours and has implications for rest breaks. This ruling is about working hours, rather than pay, and does not automatically entitle workers to extra pay.

This decision, which applies from September 2015, has several implications for employers of mobile or peripatetic workers (those who have no fixed place of work); for example, engineers, delivery drivers and carers.

  • Employers must now count driving time as working time when they establish whether an employee is taking enough rest breaks.
  • With additional hours being added to the working week, it may mean that employees who have not previously opted out of the 48 hour working week now need to do so.
  • Employees who are earning the national minimum wage (or only a little more), may now not be earning the national minimum wage on average once the extra hours are taken into consideration as working time. Therefore in certain situations, employers may have to give a pay rise.
  • Depending on the wording of contracts, employees may argue that they should be paid their usual hourly rate for travel time or that overtime rates are triggered sooner due to them working extra hours when travelling.

Employers may be able to minimise some of these implications by ensuring that the first and last appointments of the day are near the employees’ homes or office base.

For further information contact info@p4b-law.co.uk

Contractual Handbook

The recent Court of Appeal case of Department of Transport v Sparks has looked at the question of whether a new attendance management procedure could be unilaterally amended by the employer.

In this case the Court of Appeal held that the new attendance management procedure which introduced new absence trigger levels formed part of the contract of employment, despite it only being contained in the Employee Handbook.

The employees in this case successfully challenged the employer’s wish to unilaterally make changes without the employee’s consent.

Whilst it can be useful for some policies and procedures to form part of the contract of employment, employers need to give careful consideration as to which elements of the Employee Handbook should be contractual and which elements ought to be merely good practice guidance.

For further information contact us info@p4b-law.co.uk

New Employment Tribunal Rules

New Employment Tribunal Rules

Norbrook Laboratories (GB) Ltd v Shaw

On 29 July 2013, new employment tribunal fees came into force. The major change was the introduction of fees but there are other changes which employers should be aware of.

The ET1 form, on which a claim is made, has been revised and when submitting the ET1 by post (as opposed to online) an additional form must be submitted alongside it which states whether the claim is being made on behalf of one person or more than one person; this information is needed to calculate the fee which is due to the tribunal. The new ET1 also has a part to fill in for cases where the Respondent was not the Claimant’s employer; this situation may arise when a Claimant argues that they were discriminated against during a recruitment process. In discrimination cases, the Claimant can also state what they would like to happen to mitigate the effect of the discrimination on them.

There is also a new version of the ET3 form, on which a response to an ET1 is made. The ET3 now asks the Respondent whether they have a disability and need assistance with the claim; this question was previously only asked of the Claimant.

A new “sifting” stage has been introduced to claims. A tribunal judge will review the paperwork before the hearing to ascertain whether or not the claim has a reasonable prospect of success. It is expected that this will avoid weak claims getting to tribunals.

Case management discussions and pre-hearing reviews will be combined into one preliminary hearing.

Alternative dispute resolution will be strongly encouraged by tribunals wherever practical and appropriate.

Rules relating to interest on unpaid tribunal awards will change. Instead of interest becoming payable 42 days after a judgement, interest will be payable from the day after judgement is given, unless the full amount is settled within 14 days.

Tribunals will have the power to make detailed costs assessments in situations where costs are over £20,000. They may also order a party to pay a deposit in respect of a specific allegation (rather than in respect of the whole allegation as was the situation previously). This deposit must be made in order to continue with their claim and is generally required because the tribunal considers that the likelihood of the party having to make a pay-out after the tribunal is fairly high.

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If you would like to discuss your employment law options please do not hesitate to be in touch. We offer an initial free, no obligation discussion.