Irwin Mitchell | Employment Law Update | Frequently asked questions … terminating employment

Holiday pay

Lock and others v British Gas Trading Ltd and another

Issue: Whether the Working Time Regulations (“WTR’s”) can be read in line with the European Directive on working time. In particular, whether the week's pay provisions of the Employment Rights Act 1996 should be re-written for the purposes of the WTR’s so that commission and similar payments are included in holiday pay.

The Court of Appeal’s decision is expected later this year.

Why it is important: If British Gas is successful with their appeal (and there is no further appeal) the British Government will come under pressure to amend the WTR’s to make it clear that individuals with normal working hours, whose pay does not vary according to the amount of work done, will be entitled to have individual results based commission included in their holiday pay calculations. This is because the European Communities Act, passed by parliament in 1972, accepted the supremacy of EU law.

If this happens, other employers may seek to raise similar challenges about whether overtime and other benefits should be included in holiday pay.

If the appeal fails (and there is no further appeal) the case will return to the tribunal to determine how much holiday pay Mr Lock is entitled to receive. This is likely to be done by averaging his pay over a reference period which the tribunal will have to determine. This may provide guidance that can be applied to other similar cases.

Holiday pay

Fulton and Baxter v Bear Scotland

Issue: Whether claimants are prevented from bringing holiday pay claims as a series of unlawful deductions from wages where there is more than three months between individual deductions.

The EAT’s judgment is expected later this year.

Why it is important: This issue goes to the heart of how far back workers can make claims against their employers for having historically failed to include all relevant payments in holiday pay and, if successful, it is possible that claims can go back a number of years.

The decision has implications outside of the scope of holiday pay and will affect other claims brought as a series of unlawful deductions.

Indirect discrimination

Home Office (UK Border Agency) v Essop and others

Issue: Whether a claimant bringing a claim of indirect discrimination has to establish that the application of a provision, criteria or practice has caused their personal disadvantage and the reasons why it causes that disadvantage.

No date has been set down for the Supreme Court to hear the appeal.

Why it is important: It is well established in UK law that a claimant has to show that they belong to a group that, as a whole, is disadvantaged by a seemingly neutral provision, criteria or practice applied to the workforce, or to a section of it. This case will determine if they have to take a step further and demonstrate that even though they belong to the disadvantaged group, they have also been personally disadvantaged and the reasons for this. This will, potentially, make it more difficult for claimants to succeed with indirect discrimination claims.

Whistleblowing

Whistleblowing Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed

Issue: How many people have to potentially be affected by a disclosure for it to meet the public interest test? This case involved around 100 other managers.

The Court of Appeal will hear this case on 11/12 October 2016.

Why it is important: To counter criticism that individual employees were able to bring whistleblowing claims about alleged breaches of their own terms of employment, the Government made changes to the whistleblowing legislation. Claimants must show that they had a reasonable belief that their disclosure was “in the public interest”. Since this case, four lorry drivers have tried to persuade a tribunal that their complaint (about overtime) satisfied this test and a worker at a charity annoyed about the lack of desk space available to her has sought to argue that her disclosure was in the public interest because the public would be concerned about the working conditions of charity workers.

The Court of Appeal will hopefully provide guidance on how many other people must be affected by the subject of a particular disclosure to constitute the public.

Employment status

Aslam and others v Uber

The issue: Whether individuals expressly engaged as self-employed contractors are, in fact, workers. The model operated by Uber facilitates, via a mobile app, a transaction between the customer and the driver. On paper, the drivers are entitled to accept or reject fares, have to use their own vehicles and can determine their own hours etc. However, the issue relates to the control exercised by Uber and in particular the fact that it monitors the driver’s approval ratings and terminates their access to the system if these fall below a certain level.

The case has been heard by the Employment Tribunal and the decision is expected soon.

Why it is important: If the drivers are found to be workers, they will be entitled to basic workers’ rights such as the right to receive the national minimum wage, paid holiday and not to suffer unlawful deductions from their wages. Although the judgment will not be binding on other courts, organisations that engage individuals on a similar basis may face similar challenges and demands for underpayment of wages and holiday etc.


 

Employment Law Update - September 2016

Key Contact

Kirsty Ayre