Employment Tribunals are independent bodies established to resolve disputes between employers and employees over employment rights. Since the Supreme Court decision in July 2017 to quash earlier legislation introducing Tribunal fees, claimants will again no longer be required to pay fees to bring their case, at least until a further regime is proposed. While there are mixed views about this latest move, it remains the case that businesses need to ensure they treat workers fairly and within the law.
Here’s our round up of some recent important Employment Tribunals and Appeals which may impact employers and workers:
What counts for holiday pay calculations?
More case law has been made on the vexed question of how employers should calculate pay for annual leave purposes. In Flowers and others v East of England Ambulance Trust, the employment tribunal held that compulsory overtime in the form of “shift overruns” by ambulance workers should be included in the calculation of their holiday pay under the WTR (Working Time Regulations 1998). However this ET held in May 2017 also concluded that purely voluntary overtime did not have to be included.
Two months later in July 2017, an Employment Appeal Tribunal took the decision that ‘regularly’ worked voluntary overtime and other payments associated with rotas worked voluntarily should have been included in a claimant’s statutory holiday pay. The case of Willetts and Others v. Dudley Metropolitan Borough Council further adds to what is considered ‘normal pay’ but still leaves some confusion for employers about how ‘sufficient regularity’ is to be interpreted. The EAT added that each case should be decided on its own merits and that not all voluntary overtime would have to be included for holiday pay.
Suspension is not a neutral act
This August saw the High Court rule that the suspension of a London teacher was in breach of the implied term of trust and confidence between the employer and employee. In Agoreyo v London Borough of Lambeth the High Court agreed that the teacher’s suspension implied pre-determined guilt and therefore could not be viewed as a neutral act even if the employer claims it as such. The Court saw the suspension as grounds to claim constructive dismissal calling the suspension a “knee-jerk” reaction. Employers are advised to consider alternative ways of handling situations where they may have suspended employees e.g. quick evaluation and/or granting ‘personal leave’.
Flexible working refusal leads to £35,000 award
While employees have the right to request flexible working, employers have no obligation to agree. However when the EasyJet airline company refused to limit the shift lengths of two cabin crew who were breastfeeding, it led to a complaint of indirect sex discrimination. In McFarlane and another v EasyJet Airline Company Ltd an Employment Tribunal agreed that the airline’s stance put the women at a particular disadvantage. While the maximum compensation for flexible working refusals is capped at £3832, the related indirect sex discrimination claim resulted in an award of £35,000. The case highlights the risk of rejecting flexible working requests when indirectly discriminatory practices may be at play.
Changes to calculations of week’s pay
The Employment Appeal Tribunal (EAT) has ruled that employer pension contributions count towards the calculation of a week’s pay when working out the maximum compensatory award for unfair dismissal. The case of University of Sunderland v Drossou saw Ms Drossou argue that her employer’s pension contributions should be taken into account when calculating the maximum compensatory award of 52 weeks’ pay. The EAT agreed and as a result employers should be aware that unfair dismissal awards are likely to be higher than previously. Other payments calculated as guided by the Employment Rights Act 1996 may be affected too, e.g. redundancy.
When disputes arise in the workplace – for example, due to hours worked, shift patterns or annual holiday calculations – it’s important that organisations have accurate data to support the process.