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Kirsty is a highly experienced employment partner and tribunal advocate. She advises on all areas of employment law with particular expertise in employment tribunal litigation, senior exits and strategic change programmes in the financial services, construction and university sectors. She provides pragmatic and solutions-driven advice to clients and has worked in the HR function of a major bank. Kirsty sits as a fee-paid employment judge and is also a Scottish qualified solicitor.
“It has been reported that British Gas have lost their appeal. Unless British Gas obtain leave to appeal this decision to the Court of Appeal, the case will go back to the Employment Tribunal to determine how much Mr Lock is entitled to receive as compensation for having taking a holiday. This is likely to be done by averaging his pay over a given reference period which the Tribunal will have to determine.
“This does not mean however that employers will have to include all commission payments made to staff in their holiday pay. The Tribunal made it clear in earlier cases that the requirement to include overtime in holiday pay only applies to the first 20 days of leave taken in any year, and not to any additional statutory or contractual leave. This principle will apply to commission payments.
“It is also doubtful that all forms of commission payments will have to be included in holiday pay. It is important to bear in mind that Mr Lock’s commission scheme is straightforward and he was paid according to the outcome of his own work and it was very clear that Mr Lock suffered a loss when he took a holiday. Ascertaining loss will not be as straightforward in other cases where, for example, commission is paid annually, or where the scheme involves discretionary assessments based on a worker’s broader contribution.”
Those working under zero hours contracts are widely considered to be a vulnerable group requiring protection. These Regulations offer limited protection but in the view of many do not go far enough.
They do not prevent the use of zero hours contracts but offer a remedy to those who are dismissed or suffer a detriment because they have worked for someone else in breach of an exclusivity clause.
The new rules will be of little if any benefit to many on zero-hours contracts who are trapped in low paid and insecure employment.
It is possible that employers worried about the new law will look to get round it by offering their staff a minimum number of hours per week (which could be as little as just a few hours) to take their contracts outside the scope of the rules.
“This issue of gender pay is a ticking time bomb for the private sector and one that it cannot afford to ignore any longer. It is now 40 years since the Equal Pay Act came into force, but in the private sector the number of claims has remained low despite all of the statistics pointing to significant ongoing differences in pay between men and women.
"A lot has been done to tackle the issue in the public sector, but much less in the private sector. Claimant lawyers are starting to target some large employers in the private sector and we are now seeing some claims coming through. Publishing equal pay information will push the issue of pay equality up the agenda and is likely to result in more claims. It is important that businesses engage with the consultation process to ensure their views are heard.”
“It is difficult to know at this stage how much of a difference these new rules will make. Employers can still include clauses requiring workers on such contracts to be available for work if required, which may have a similar impact to an exclusivity clause.
“Employers do however need to check the terms of any zero-hours contracts they are using and if they contain exclusivity clauses, they need to be removed.
“Employers may as a result of these new laws find that that they are at risk of an employee working for a competitor. If this is the case, they should take action by either putting them on a different type of contract, or beefing up the confidentiality and IP provisions and restrictive covenants.”