Employment Law Roundup – October 2018

October 9th, 2018

When is notice not notice? When it is ambiguous, said the Employment Appeal Tribunal in East Kent Hospitals v Levy. The employee worked in the records department. She had a poor sickness absence record. She applied for a role in the hospital’s radiology department, which she was offered subject to pre-employment checks. She wrote to her manager giving one month’s notice, which her manager accepted in writing.

The Radiology department retracted the offer due to the employee’s poor absence record. The employee then tried to retract her notice. The employer refused. The employee brought a claim for unfair dismissal, but the employer said she had resigned. The question was, had she?

The Employment Appeal Tribunal said the key issue was the content of the employee’s letter and what had been understood by the employer at the time. The tribunal looked objectively at what the ‘reasonable recipient’ would have understood from the letter, armed with all the background information including the employee’s expectation of an internal transfer to radiology. On receiving the letter, her manager did not take steps to recoup her excess holiday or do termination forms (which he did promptly after refusing her retraction). The EAT found that the reasonable observer would not have thought the employee was resigning from the Trust. They would have thought the employee was giving notice of her intention to accept a conditional offer of employment in radiology. The resignation had not been ‘clear and unambiguous’ and was not valid.

Employers can still (generally) refuse to accept a retraction of notice. The key is to ensure that notice has been validly given first, before refusing the retraction. Read the rest of this entry »

Employment Law Roundup – September 2018

September 6th, 2018

The holiday season might be ending, but holiday pay remains a hot topic. In Flowers v East of England Ambulance Trust, the Employment Appeal Tribunal looked at whether voluntary overtime should be included in holiday pay. Employees should be paid their ‘normal remuneration’ when they take holiday. But is voluntary overtime ‘normal’ pay?

This case involved ambulance workers who worked different types of overtime. Sometimes they worked compulsory ‘non-guaranteed’ overtime at the end of a shift, to finish a task such as caring for a patient. They could also choose to work voluntary overtime if it was offered, but they didn’t have to. Their holiday pay was based on average earnings over the 12 weeks preceding their holiday. The employer didn’t include any overtime in their holiday pay calculations. The employees brought claims for unlawful deduction from wages.

The employment tribunal said that their holiday pay should include the non-guaranteed overtime, because it was a contractual obligation. They said voluntary overtime could be excluded because it wasn’t contractual and there was no pattern to it. It wasn’t ‘normal remuneration’.

The EAT disagreed and said both types of overtime should be included in the calculation. The important question was whether overtime payments had been made over a sufficient period on a regular or recurring basis. Whether overtime payments meet this requirement is a question for the employment tribunal to decide, based on the evidence. The case was sent back to the tribunal for this factual assessment to take place. Read the rest of this entry »

Employment Law Roundup – July 2018

July 2nd, 2018

There has been a lot of publicity lately about the employment status of individuals working in the gig economy. Employees and workers have more rights than the genuinely self-employed, so individuals are pushing for this status. Recently, the Supreme Court gave its decision in the high-profile Pimlico Plumbers case. Can someone be a ‘worker’ even though their contract says they are self-employed?

Mr Smith worked for Pimlico Plumbers as an engineer. He had a uniform and a branded van. He had to work at least 40 hours per week and pre-book any holiday through the company procedure. However, he paid his own tax and national insurance, used his own tools and paid his own insurance. He could subcontract work only to other Pimlico operatives. He also took some financial risk in relation to fees.

Mr Smith claimed he was pushed out of the business when he asked to reduce his hours after a heart attack. He brought claims for unfair dismissal as an employee and various other claims as a worker, including a disability discrimination claim.

The Supreme Court confirmed that Mr Smith was not an employee, but he was a worker and ‘in employment’ (as a worker) for the purposes of discrimination law. The company exerted significant control over him, including financial control. He was well integrated into the workforce. His right to subcontract work was too limiting for genuinely self-employed status. He was not running his own business. Mr Smith was a worker and his claims will now be heard by a tribunal. Read the rest of this entry »

Employment Law Roundup – June 2018

June 7th, 2018

You have no doubt been inundated with emails and messages about the GDPR and noticed a change in their content as people came to realise that it was not actually necessary to obtain fresh consent to being on a mailing list. Many of the emails circulating were being used as marketing opportunities more than anything else! However, businesses should have updated their Data protection and privacy policies as a result of the GDPR and here we are no different. Our updated policies can be viewed on our website. Read the rest of this entry »

Employment Law Roundup – May 2018

May 4th, 2018

With the gender pay gap reports now published, we know that there is a significant gender pay gap in the UK with men at many companies being paid on average more than women. It does not necessarily mean that those businesses have an equal pay problem – that depends on the reason for the gap. One reason can be that women often take on the primary childcare role which can have a knock-on effect on their earnings potential.

The government had hoped that the introduction of shared parental leave in 2015 would help to address this societal difference. The legislation allows for either parent to take shared parental leave if the mother curtails her maternity leave. Shared parental leave is paid at a statutory rate. Many employers pay an enhanced rate of maternity pay, but less employers have chosen to do the same for shared parental pay. This is thought to have contributed to the slow uptake for shared parental leave (as low as 2% according to the Department for Business recently).

In Capita v Ali, Mr Ali raised an employment tribunal claim against his employer for direct sex discrimination when he was not given enhanced shared parental pay, in line with the enhanced maternity pay that a woman on maternity leave would have received. Mr Ali argued that as the shared parental leave regime allows parents to choose which of them takes leave to care for their child (after the mother’s two-week compulsory maternity leave period) it was discrimination if a man was not paid the same as a woman for the remaining leave. The tribunal agreed with him, highlighting that men were now being encouraged to take a greater role in childcare and there should not be an assumption that the mother is always best placed to do that.

The Employment Appeal Tribunal disagreed. Women who gave up their maternity leave and instead took shared parental leave with the father were not paid enhanced shared parental pay. They were paid the same as men – the statutory rate. The purpose of the relevant EU legislation on maternity leave is the health and wellbeing of the pregnant and birth mother, rather than the care of the child. Mr Ali should have been compared with a woman on shared parental leave and not a woman on maternity leave. He was paid the same as a woman on shared parental leave, so he lost his sex discrimination claim.

Interestingly, the EAT did comment that after 26 weeks the purpose of maternity leave might change from biological recovery from childbirth and the special bonding period between mother and child. It may be possible after that to draw a valid comparison between a father on shared parental leave and a mother on maternity leave. We expect further case law in this area. For now, you should ensure that you pay men the same shared parental pay rate as you pay women who take shared parental leave. Read the rest of this entry »