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Paul Burton, Head of Frettens' Employment Team, counts down last year's most significant employment judgments… Assessing things for businesses to be aware of to avoid costly mistakes in 2018.
5. Enhanced shared parental pay for fathers?
Should shared parental pay be enhanced for fathers on shared parental leave if maternity pay is enhanced for mothers on maternity leave?
The answer was yes in Ali v Capita Customer Management Ltd, where Mr Ali successfully argued that enhanced maternity pay for his female colleagues but no enhanced shared parental pay for him constituted direct sex discrimination.
However, in Hextall v Chief Constable of Leicestershire Police, the employment tribunal decided that the correct comparator was a woman on shared parental leave, not a woman on maternity leave.
The Employment Appeal Tribunal heard Ali's appeal in December 2017 and the the Employment Appeal Tribunal heard the Hextall appeal in January 2018 and reserved its decision, meaning that the Employment Appeal Tribunal did not give its decision immediately at the end of the hearing, but took time to consider it and gave it at a later date.
Paul comments “If the Ali decision is upheld, employers will need to treat shared parental pay and maternity pay equally and enhance (or not enhance) both. However, with two Employment Appeal Tribunal judgments pending, employers should defer any changes to their family-friendly policies for now.”
4. Voluntary overtime to be included in holiday pay
In Dudley Metropolitan Borough Council v Willetts and others, the Employment Appeal Tribunal held that regular voluntary overtime should be included when calculating holiday pay.
Consequently, guaranteed compulsory, non-guaranteed compulsory and voluntary overtime must all be included in holiday pay.
For voluntary overtime, the test is whether the ‘pattern of work’ extends for a sufficient period of time on a regular and/or recurring basis to justify the description ‘normal’.
Deciding what is ‘regular’ could be tricky. In this case, voluntary overtime once every four-five weeks was enough.
This ruling only applies to the four weeks' leave guaranteed under EU law, not the additional 1.6 weeks' under UK law or any other contractual leave.
Paul says “While this case could leave employers exposed to claims of underpayment of holiday pay, employees with a break of more than three months between payments may not be able to argue that they have suffered a series of unlawful deductions. Case number 2 below has cast some doubt on the UK tribunal decision that more than three months breaks a series of unlawful deductions – this is still to be decided”.
3. Worker status in the gig economy
Uber's woes continued throughout 2017, when the Employment Appeal Tribunal upheld the employment tribunal's 2016 decision that its drivers were ‘workers’ and not self-employed.
Uber's request to leapfrog its appeal to the Supreme Court was refused and a Court of Appeal hearing is expected.
Other gig economy cases followed the same trend (the Court of Appeal ruling in Pimlico Plumbers v Smith, in addition to several employment tribunal decisions that couriers at CitySprint, Excel and Addison Lee were workers).
Paul says says “It is for employers to ascertain the true employment status of their workforce. Engaging staff on a self-employed basis when in reality they are ‘workers’ means they are entitled to the national minimum wage, paid holiday and pension auto-enrolment.”
2. Backdated pay for untaken holiday could be recouped by workers
In King v The Sash Windows Workshop Ltd, the European Court of Justice ruled that Mr King, who had established ‘worker’ status, was entitled to pay for both unpaid holiday he had taken and holiday he did not take because he thought it would be unpaid.
Paul says “Unlike holiday, which carries over during sick leave and can be lost after a certain period, the European Court of Justice found that there was no time limit on the untaken leave that had accrued because of the company's failure to provide King with his right to paid holiday as a worker.”
King could claim untaken leave for his 13 years' engagement. The Court of Appeal will now decide whether the European Court of Justice judgment is consistent with UK law.
1. Employment tribunal fees abolished
The key case of 2017 was the Supreme Court's decision in R (on the application of Unison) v Lord Chancellor that employment tribunal fees were unlawful.
The number of claims has already started to increase. On 14 December 2017, statistics published by the Ministry of Justice for July to September 2017 showed a 64% increase (compared to the same period in 2016) in single applicant claims.
Paul says “As well as new claims, employers may have to defend old claims that were struck out because the claimant did not pay the fee or was deterred from bringing their claim because of the fees. It will be decided case by case whether such claims can be brought ‘out of time’.”
If employers are faced with claims lacking substance, they can apply to have claims struck out where they believe the claim is vexatious or has no reasonable prospect of success, and applications can also be made for deposit orders as a condition of the employee continuing with their claim.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and the Employment team will be happy to discuss it with you.
