Holiday Pay Updates – Back with a Vengeance

Posted by: on Aug 2, 2017 | No Comments

Some of you will no doubt remember the barrage of holiday pay emails and updates we sent to you during 2015 and early 2016. After an 18 month hiatus, there has been another ruling in this arena which (almost) sets the position straight.

For those that do not recall (or have repressed) the holiday pay dramas of 2015, there was a flurry of cases on holiday which, in short, appeared to increase the scope of payments that must be included in holiday pay. At the start of 2016 we were certain that compulsory, non-voluntary overtime should be included in holiday pay calculations, as should a value for lost commission (which, of course, cannot be earned during a period of holiday), although no guidance had been provided on how to carry out those calculations. What we were also clear on was that truly voluntary overtime did not need to be taken into account in calculating holiday pay.

The Employment Appeal Tribunal has ruled this week in the case of Dudley Metropolitan Borough Council v Willetts that voluntary overtime does need to be included in holiday pay calculations where the circumstances mean that pay earned for voluntary overtime essentially forms part of a worker’s normal pay. It also confirmed that, in that case, holiday pay should include an amount in respect of on-call payments, and mileage allowances which were taxable as a benefit in kind, where they formed part of a worker’s normal pay.

Voluntary overtime

The decision means that, in contrast to the previous position where many employers did not consider voluntary overtime in calculating holiday pay, now voluntary overtime must be considered where it is if of a sufficient pattern to form part of “normal pay”. This will come down to the circumstances of each case, but the basic rule of thumb will be that the more regular the voluntary overtime, the more likely it is necessary to include it in holiday pay calculations. It is unlikely that you will need to consider truly one-off voluntary overtime hours worked when calculating holiday pay.

The general position

The basic position now is that holiday pay should include an amount in respect of any normal pay which is normally received by workers. That includes:

  • Commission payments
  • Overtime of any sort (whether voluntary, compulsory, or guaranteed)
  • Shift allowances
  • Stand by payments
  • Call out payments
  • Any travel payments which are treated as taxable remuneration (as opposed to reimbursement of expenses).

The position on whether or not bonuses should be included in holiday calculations remains uncertain. It seems likely that productivity or attendance bonuses will be considered part of normal pay, and therefore payable to workers when on holiday. Annual discretionary bonuses, bonuses based on purely company performance, and other bonuses are a different matter – currently there is no requirement that they should be included in holiday pay calculations, but as yet that has not been ruled on by the courts.

So that’s settled then?

For now, the elements listed above need to be included in holiday pay calculations. However, this decision could be appealed (as seems to be the trend in holiday pay cases), and we will have to wait to see if that is the case.

It also remains to be seen whether the Brexit process will affect the current position, which is derived from and based on European Law. It is therefore, in theory, open to the Government to depart from this decision post-Brexit.

There are also matters that are not settled – namely whether bonuses should be included in holiday pay calculations, and, perhaps more crucially, how holiday pay figures should actually be calculated. It is not clear whether they should be calculated with reference to the normal pay in the 12 weeks prior to taking holiday, 12 months prior, or something else. Some commentators have even suggested that the period for calculation should be on a case by case basis, which would, in our view, be wholly unsatisfactory and unworkable. Some employers are using a 12 week average, but it remains to be seen whether that is correct.

The key point to note is also that this ruling (and the previous rulings on this issue) only apply to the 4 weeks / 20 days holiday prescribed by European Law. The other 1.6 weeks / 8 days required by UK law is not affected by these cases. That means that employers can pay “basic pay” (without commission, overtime, allowances etc.) only, for 8 days of holiday. Needless to say, that makes calculating holiday pay incredibly administratively burdensome.

What do you need to do?

Legally speaking, all workers who take holiday should now, for 20 days of their holiday, receive a payment which includes an element for all the applicable factors listed above. There are various ways suggested by commentators to make those calculations, depending on the particular elements of pay that are to be included, and all of the ways are tricky and labour intensive, and, unfortunately, facts specific. Employers requiring any advice on that should contact the Employmentor Team, and we can help with the various calculation options and which one will be best / most appropriate for a particular scenario.

Practically, it may well be worth considering more generally the arrangements under which your staff are hired and your business is run. Options include:

  • Assessing the way in which you pay your staff; in particular your use of overtime, commission, and call-out pay arrangements;
  •  Assessing the manner in which staff hours are set and workloads are managed. A move to annualised hours or guaranteed hours might be more palatable and / or certain;
  •  Considering costs cutting measures elsewhere in your business if you cannot afford to absorb the increased holiday pay costs.

Planned carefully, changes could be made to the arrangements with your staff which will enable you to be (relatively) certain as to what your wage bill will be each year (as opposed to a more fluctuating one) and to manage staffing levels appropriately. If you would like to speak with any member of the Employmentor Team to chat through your options, please call 01603 281139 to arrange that.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

The Modern Employer

Posted by: on Jan 26, 2017 | No Comments

January is nearly over…the New Year’s resolutions are well and truly broken, and we’ve (finally) finished that last bit of Christmas cake. As the nights get longer and the twinkly lights of the festive season become a distant memory, the Employmentor Team is focusing on the upcoming year and is on hand to suggest new resolutions for you to adopt and (hopefully) stick to for (at least) the rest of 2017.

It is well known that, sometimes, employees can be, frankly, a bit of a headache. We’ve all been to seminars about the pitfalls of the employment relationship and how to solve any issues that might arise. That said, employees are often also a business’ greatest asset – after all, they do most of the work and are often the first or main point of contact with clients and customers. With that in mind, our resolution this year, and one which we encourage you to join, is to focus on being a Modern Employer. That means (to us) focusing on how to recruit, retain, and reward employees. It is a focus on treating employees properly, managing them properly, and rewarding them properly, in the hope that those pesky issues, which we are all so well versed in dealing with, do not arise. So, instead of us helping you prevent an employee from joining a competitor when they resign, they will not want to resign in the first place. Instead of us helping you manage issues that arise from an employee who is off on long term sick with stress, you never reach the point where that person feels the need to sign themselves off.

Of course there will still be situations where you need to take firm action to manage employees, and as you know, the team here are always on hand to deal decisively with any problems that arise. However, in an increasingly difficult market, a focus on being a Modern Employer should help to:

  • Recruit quality employees;
  • Retain quality employees;
  • Increase your business’ productivity and efficiency;
  • Distinguish your business from your competitors; and
  • Make your business more attractive to clients and customers.

After all, many work-seekers and companies judge a business on how it treats its people. Already this year there has been a worldwide call on key figures to act responsibly and to ensure equal treatment. If you can set your business apart as one that treats its employees with respect, it may just mean that you edge the recruitment of an exceptional candidate, or win business from a new client or customer (and should give you less HR headaches to deal with!).

Over the course of the next year the Employmentor Team will be running a number of seminars on ‘The Modern Employer’, and will be focusing its email updates on that theme. Keep your eyes peeled for our first article in the next couple of weeks, and an invite to our first seminar on this topic – we’re excited to see you there!

Call the fashion police, that dress code is discriminatory… or is it?

Posted by: on Jul 20, 2016 | No Comments

Can you make your receptionist wear heels? What about a ban on headscarves, turbans, or wearing the cross? Can you stop your staff wearing a badge for their political party of choice? Dress codes have long been a battleground between employers and their staff, and as a number of recent cases show, it can be a difficult line to draw between keeping staff looking smart, and keeping on the right side of the law. You could face a discrimination claim if your policy places employees at a disadvantage because of a protected characteristic such as their sex or religion.

Heels or flats?

As you might have seen in the news, a female receptionist has begun a petition to ask the government to address allegedly sexist dress codes after reportedly being sent home for refusing to comply with a requirement to wear 2 to 4 inch heels at work. Much of the media coverage has labelled this policy sexist and some have raised concerns that this policy may amount to sex discrimination under employment law.

Whilst her petition is receiving a lot of attention, her employer’s dress code policy is not actually unlawful. Simply because men are not also required to wear heels does not make the policy inherently unlawful; consider that there could well be a similar policy that men must wear ties (and women do not), which clearly is not unlawful discrimination. An employer is permitted to have different dress codes for men and for women, provided that the dress code applies an equal overall standard of appearance between the sexes and is not, for instance, because the employer believes that women look more attractive in high heels!

Keeping it neutral

Employers also need to respect their employees’ religions when deciding on a dress code. In the recent case of Achbita and anor v G4S Secure Solutions, which was referred to the European Court of Justice (“the ECJ”), a Muslim woman who worked as a receptionist for a security firm was told by her employer that she would not be allowed to wear a headscarf for religious reasons. Ms Achbita claimed that she was being discriminated against because of her religion.

Initial comments by the ECJ suggest that her employer might be able to defend the claim based on its policy of complete neutrality. Her employer had a policy which prohibited employees from wearing any visible signs of political, philosophical or religious beliefs and from giving expression to any ritual arising from them. The company argued that it was vital to appear completely neutral to its clients. The ECJ suggested that because the policy was so wide and so strictly applied, it was not discriminatory against Ms Achbita on the grounds of her religion.

Ban on headscarves was unacceptable

In the similar case of Bougnaoui and anor v Micropole SA, which has also been referred to the ECJ, a design engineer was asked by her employer not to wear a religious headscarf when at one of its client’s premises. As with the case above, Ms Bougnaoui brought a claim for discrimination based on her religion.

The employer in this case had received complaints from its client that Ms Bougnaoui’s headscarf had made its staff feel uncomfortable, and the employer was keen to maintain a good relationship with this client. This employer also said that it wanted to appear neutral, although its policy was less clear and strict than the one in the case above. Early comments from the ECJ in this case, however, have indicated that the employer’s actions here were discriminatory. The ECJ has indicated in this case that an employer should only be able to restrict an employee from wearing religious items such as a headscarf where it is strictly necessary, such as for health and safety reasons.

So why the difference?

Our view is that the reason for the contradictory views expressed by the ECJ comes down to the clarity of the dress code and the motivation behind its implementation. The policy in the first case (Ms Achbita) focussed on complete neutrality, it was clear, strictly applied and applied to all religions and beliefs indiscriminately. In contrast, in the second case (Ms Bougnaoui) her employer was simply reacting to a discriminatory comment made to it by its client, and was focussed on maintaining the business relationship only. Any policy it did have in place was less wide, had no clear rationale, and not as strictly applied.  That said, the views do now put businesses in a difficult position, as the ECJ has arrived at completely opposite decisions in respect of very similar facts.

What does this mean for you?

We will have to wait and see how the courts resolve the cases above, however, what is clear is that employers will have to tread carefully in terms of discrimination issues if they want to implement a dress code. You need to think carefully about whether the requirements will affect men and women differently or prevent someone from expressing their religion or other characteristic without good reason. If an employee has a good reason for challenging the dress code, it is usually good practice to take this seriously and investigate their concerns.

That said, employers can still be confident in setting a sensible dress code. For example, it is perfectly acceptable in a professional services environment to have a “no shorts or sandals” rule… even in this heat! If you have any concerns, or are thinking about bringing in a dress code, just give the Employmentor Team a call on 01603 281139 and we will be happy to help.


Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Employment Law Changes: April 2016

Posted by: on Apr 1, 2016 | No Comments

Over the last few months there have been a number of changes and updates in the world of employment law, and some important tribunal decisions have been made. There are always a raft of changes in April, and in order to keep you up-to-date, we’ve summarised these below.


Upcoming Changes:

Introduction of the Living Wage

From 1 April 2016, the Government will introduce the Living Wage. This will add a premium to the minimum wage, increasing the legal minimum wage for any employee over 25 to £7.20 per hour.

Compensation Limit Increases

From 6 April 2016, the maximum limit for a weeks’ pay will increase from £475 to £479. This is used to calculate both statutory redundancy pay and the basic award element of compensation for unfair dismissal. The maximum compensatory award for unfair dismissal will also increase from 6 April, increasing from £78,335 to £78,962 (or 52 weeks’ pay, whichever is lower). Small changes, but not ones to overlook.

Other Rates

Unusually, there will be no increase to the statutory maternity, paternity, adoption or shared parental pay rates, or to statutory sick pay.

Modern Slavery Act

Introduced last October, this Act will require organisations with a turnover of over £36 million worldwide to prepare a modern slavery statement each financial year. This statement must set out what steps the organisation is taking to ensure modern slavery isn’t occurring in their business or their supply chain. The statement should be prepared after the financial year end, and applies to organisations with a financial year end of 31 March 2016 onwards. We’ll be sending out further information soon, so keep your eyes peeled for an article explaining exactly what is required.


Recent Developments:

Employer Liable for Employees’ Actions

It has long been the case that an employer can be held liable for the actions of their employees. However, a recent court decision has highlighted just how far this liability can stretch after an employer was found to be liable for the violent assault of one of its customers by a member of its staff. To avoid a potentially costly claim, employers should ensure staff are appropriately trained and expectations of behaviour are clear.

Holiday Pay update

The appeals we mentioned in our last update have now been decided (see our recent article). Commission and overtime can both form part of an employee’s statutory holiday pay, provided it’s part of their normal pay. Unfortunately, the decisions did not explain exactly how holiday pay should be calculated in these situations. There are set to be further appeals in the future, so watch this space!

Long Term Lay-off

Typically used in manufacturing sectors, lay-off refers to a temporary situation where employees are provided with no work and no pay, but remain employees of the business. It is usually used as an alternative to redundancy to deal with a sudden downturn in workload or unforeseen circumstances. Importantly, an employee can only be laid off where the right to do so is expressly included in their contract of employment.

Lay-off is a temporary solution and helpfully, a recent case has held that there is no need for the length of time which the employee is laid off to be “reasonable”. Where the contract of employment allows for an indefinite period of lay-off, this can be enforced, even if an employee is laid off for a long period of time.

No Change to Sunday Trading Laws

In what promised to be one of the biggest trading law shake-ups in recent years, the Government had planned to overhaul the Sunday Trading Laws, relaxing the existing restrictions. However, these plans have now been dropped following a vote in the House of Commons which rejected the changes.


For more information on any of the changes above, please contact a member of the Employmentor team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.


Holiday Pay (for a change)

Posted by: on Mar 2, 2016 | No Comments

You may recall that a short while back we reported on a decision in the Employment Tribunal in the case of Mr Lock v British Gas, which held that where an employee is paid via commission (in whole or part), their holiday pay should include an element in respect of that commission. British Gas, however, appealed the outcome and the Employment Appeal Tribunal (“EAT”) passed Judgment on the appeal last week.

The case centred around Mr Lock, who worked for British Gas.  His salary package was broken down as roughly 40% basic pay and 60% commission. Mr Lock was unable to earn commission during his holidays (as he was not working), and he complained to the Tribunal as he believed that this was unfair and operated to deter him from taking his holiday. The Tribunal agreed with him. Last week the EAT upheld the Tribunal’s decision that holiday pay should include commission if this is part of a workers’ normal pay.

UNISON general secretary Dave Prentis said “This is a victory for workers and victory towards fair pay in this country and beyond”.

The decision means that workers’ pay for annual leave periods must include commission, as well as basic pay, if this is what they are normally paid. The case comes quickly on the back of the EAT decision in Bear Scotland v Fulton which set out that overtime pay should in certain circumstances also be included in a workers’ pay whilst on annual leave.  Unhelpfully, neither case sets out how employers should calculate what the value of the commission/overtime should be, so whilst employers can now be (relatively) certain that commission and overtime should be considered as part of holiday pay, it is not clear how payment of that should be made.

These recent cases throw up a number of practical complications for employers on many different fronts, and certainly could cause headaches when calculating holiday pay. There are many different ways to deal with these implications and our team of expert employment lawyers can work with you to provide practical solutions and advice on the current position tailored to your specific business. For more information on your options in respect of holiday pay please do not hesitate to call any member of the Employmentor Team on 01603 281139. 


Coffee anyone? Starbucks employee wins discrimination case

Posted by: on Feb 10, 2016 | No Comments

In the wake of the negative publicity over their payment of tax in the UK, Starbucks finds itself facing more criticism following the Employment Tribunal’s recent decision that the company had discriminated against a dyslexic employee.

The case related to an employee, Meseret Kumulchew, who worked as a supervisor in the Starbucks Clapham branch. Her role included taking temperature readings from fridges, and water, at certain times within the branch. She was then required to add these details to a duty roster. Starbucks found that Ms Kumulchew had entered incorrect data and accused her of falsifying the records. The treatment and allegations Starbucks made against Ms Kumulchew is reported to have pushed her to the brink of suicide.

Ms Kumulchew took Starbucks to the Employment Tribunal alleging disability discrimination on the basis that her mistakes in recording the data were as a result of suffering from dyslexia, which meant that she had difficulty with reading and writing.

The Tribunal found in her favour, stating that Starbucks had failed to make reasonable adjustments for her disability, and that she had been subject to discrimination because of the impact of her dyslexia. The Tribunal also found that she had been victimised by Starbucks, as it had failed to understand the equality issues in relation to Ms Kumulchew’s dyslexia and the effects it had on her work.

This case brings into stark focus the need for employers to be aware of what falls within the meaning of “disability” under the Equality Act 2010 and the obligations to make reasonable adjustments for disabled employees.

Is an employee disabled?

Whether an employee is disabled under the Equality Act 2010 is a legal test and does not necessarily correspond with other tests or perceived perceptions. Some conditions are deemed to be disabilities. For other conditions, the law asks four questions to determine whether an employee would be classed as disabled:

  1. Does the employee have a physical or mental impairment?
  2. Does this effect their ability to carry out normal day-to-day activities?
  3. Is the effect substantial?
  4. Is the effect long term (12 months generally)?

If an employee does come under the legal definition of “disability” under the Equality Act 2010, employers are under an obligation (amongst other things) to make reasonable adjustments.

Reasonable adjustments

Employers are under a duty to make reasonable adjustments to help disabled job applicants and employees. The duty effectively means that the employer must then make necessary alterations to remove the disadvantages suffered by the individual as a result of their disability.

A disadvantage may occur due to:

  • A physical feature of an employer’s premises;
  • A provision, criteria or practice adopted by an employer that places a disabled individual at a disadvantage – for instance, if an employer has set targets, but an employee has a condition which affects their concentration at work and makes it hard for them to meet those targets, that employee could be put to a disadvantage if they were to receive less bonus/be placed under performance management processes as a result.
  • An employer’s failure to provide an auxiliary aid.

If one of the above situations arises, the employer should look at making reasonable adjustments. What is reasonable is always a key question, and a difficult one to answer, as this will depend upon the circumstances of the case. Reasonable adjustments include (but are not limited to):

  • Adjusting physical premises;
  • Altering hours of work;
  • Additional training;
  • Providing supervision or other support;
  • Modifying internal procedures such as disciplinary procedures; or
  • Acquiring or modifying equipment.

In the case of Ms Kumulchew and Starbucks, Ms Kumulchew was put to a disadvantage by being accused by her employer of falsifying documents, being given lesser duties at her branch and being told to retrain. Examples of reasonable adjustments Starbucks should have made to overcome the disadvantage would have included giving instructions visually/verbally in relation specific tasks, providing support with proof reading and taking alternative steps to manage the issue, as opposed to amending the duties.

For more information on disability or reasonable adjustments please do not hesitate to contact any member of the Employmentor Team on 01603 281139.

Note: the content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

New Year, New Laws – the changes to expect in employment law in 2016

Posted by: on Jan 11, 2016 | No Comments

As New Year’s resolutions are made (and broken), and everyone looks forward to the year ahead, employment lawyers contemplate a busy year with a number of key employment law changes scheduled. This update provides an overview of upcoming shifts in the employment sphere, which may impact employers and employees alike in the coming months.

Zero Hours Contracts

As of today, 11 January 2016, the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015 will come into force.  Whilst exclusivity clauses in zero hours contracts were prohibited in 2015, the Regulations provide a further layer of protection for zero hours workers by giving a remedy against employers who subject the worker to a detriment, or dismiss them, for breaching any such (unlawful) exclusivity clause.

Holiday pay

Our November 2015 update discussed the current (and vague) position of what is and what isn’t included in the calculation of holiday pay. It is anticipated that the seminal case of Lock v British Gas Trading Limited will provide a greater insight into how to approach commission payments when calculating holiday, as well as whether or not bonuses should be taken into account when calculating holiday pay (currently they are not). The EAT heard this case last month, however, judgment has not been delivered.  Stay tuned for further news!

Reporting gender pay gaps

By 26 March 2016 the government must introduce legislation to compel private sector employers with 250 or more employees to publish information about the differences in pay between men and women, including the disparity in their bonus payments. At this stage, little information is known as to what precisely employers must provide, or where the information is to be published, but we will of course keep you updated.

The National Living Wage

The National Living Wage spells good news for employees but potentially damaging news for the small business. Due to come into force on 1 April 2016, the National Living Wage adds a premium onto the existing National Minimum Wage for all workers aged 25, entitling them to an increased hourly rate of £7.20.  Businesses should (if they have not done so already) consider the impact this will have and any strategies they may need to implement to deal with any resulting increased cost pressures. Speak to one of the employmentor team if you would like assistance in this process.

Statutory parental pay and sick pay

There will be no annual increase to the weekly rates of statutory maternity pay, statutory paternity pay, and statutory sick pay in 2016. Rates will therefore remain at £139.58 per week for maternity (after the initial 6 weeks) and paternity pay, and £88.45 for sick pay.


Employers and organisations will be banned from describing an arrangement as an ‘apprenticeship’ when used to describe a scheme that is not a statutory apprenticeship.

Tribunal Fees

The Justice Committee is conducting an inquiry into the effects of changes to court and tribunal fees including, in particular, the introduction of employment tribunal fees. MPs have fervently backed this inquiry by calling for a review of tribunal fees to allow access to justice to employees. The outcome of such a review may, once again, have a huge impact on the level of tribunal claims faced by employers.

Grandparental Leave

Consultation will begin in the early half of 2016 in relation to the introduction of so-called “grandparental leave”, which would allow grandparents to take statutory leave to care for their grandchildren. However, this is not likely to come into force until 2018.

As ever, if you have any HR or employment law concerns, contact the employmentor team for advice on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.





Employment Law Changes: November 2015

Posted by: on Nov 20, 2015 | No Comments

As the evenings draw in and there is a definite chill in the air, employment lawyers and HR professionals alike begin to take stock of the recent changes to employment law, and look to what 2016 might have in store. We have set out below a summary of some of the key changes and important tribunal decisions over the past few months.

Cap on back payment of Holiday Pay Claims (July 2015)

A sigh of relief to be heard all round following the introduction in July 2015 of a cap on the back payment of holiday pay, following the flurry of recent decisions on how employers should calculate holiday pay (which is still not entirely clear-cut). Employers were becoming increasingly concerned about the potential liability they may incur, going back for many years, in respect of the incorrect calculation of holiday pay, however, for claims brought on or after 1 July 2015, the law has changed to limit holiday back pay claims to two years.

We will continue to keep you informed as to any further developments in respect of the calculation of holiday pay, but if you have any questions, please do contact one of our Employmentor Team.

Fit for Work (September 2015)

First launched in late 2014, the Government’s “Fit for Work” Scheme is now fully operational and has been rolled out across the country from September 2015. In brief, the Fit for Work Scheme entitles employers to make use of two new services:

  1. Free health and work advice via its website and telephone helpline; and
  2. Free referral for an occupational health assessment for employees who are off work for four weeks or more.

Whilst employees will ordinarily be referred by their GP, it is open to employers to make the referral once the employee has reached four weeks’ sickness absence. There is also a tax exemption for employers in respect of medical treatments offered to employees up to the value of £500 per employee per year.

This is certainly something for employers to consider in relation to any employees who are off work for this length of time, although we would recommend that you contact one of our team if you are in any doubt as to how to manage sickness absence.

Changes to the National Minimum Wage (October 2015)

Increases to the National Minimum Wage from 1 October 2015:

  • The standard adult rate increased to £6.70;
  • The rate for workers between 18 and 20 increased to £5.30;
  • The rate for workers between 16 and 17 increased to £3.87; and
  • The rate for apprentices under 19 increased to £3.30.

Safety Helmets for Sikhs (October 2015)

Also from 1 October 2015, the right for Sikhs to wear a turban instead of a safety helmet has been extended to apply to almost all workplaces. There are some limited exceptions, including certain roles in the military and the emergency services.

Associative Discrimination

Most employers are aware of the additional responsibilities and obligations they have in respect of employees who have a “protected characteristic” for the purposes of the discrimination law. Employers might also be aware that, in some cases, employees who are “associated” with someone who has a protected characteristic can also bring discrimination claims. 2015 has seen some interesting cases which have developed this area, effectively widening the protection for such employees. Here are some useful examples:

  1. An employee is dismissed for taking time off to look after her disabled husband. Even though she is not disabled, this is likely to be discriminatory.
  2. An employer requires all staff to work on Saturdays. One employee refuses, on the basis that his wife is Jewish, and even though he is not Jewish, he wants to respect her beliefs. His dismissal could be discriminatory (although could be objectively justified).
  3. An employee overhears a colleague making offensive homophobic remarks to a gay colleague. Whilst he himself is not gay, he is offended by this. He is likely to be protected against harassment.
  4. An employee discovers that a colleague brought a Tribunal claim for sexual harassment against her line manager. When the line manager finds out she knows about this, he dismisses her. This is likely to be victimisation.

It is also worth remembering that, at least for now, the duty to make reasonable adjustments only applies to employees who are disabled, and does not apply to employees who are associated with someone with a disability. This is a notoriously complex area of employment law and if you have any questions about whether or not these obligations apply please do contact one of our Employmentor team.

Travel Time

A big headline this autumn was in relation to workers who do not have a fixed place of work, namely that the time spent travelling between home and their first and last customer/client of the day will count towards “working time”. This is likely to have a significant impact on those businesses who employ such workers in relation to their working hours and potentially pay. Such businesses may also wish to consider putting in place practices such as monitoring travel time to avoid potential abuse of this new rule.

What’s Next?

As we have touched on above, the position with what is and what isn’t included in the calculation of holiday pay is still far from clear. Holiday pay has now been deemed to include commission, guaranteed overtime and (potentially) non-guaranteed overtime. One of the relevant decisions is due for appeal next month, and we are hopeful that this may bring some further guidance on how to calculate the inclusion of commission and other payments into holiday pay. 2016 may also bring some clarification in respect of whether or not bonuses should be included in the calculation of holiday pay, (currently they are not). So it’s a case of …. ‘Watch this Space’.

Finally, subscribers to Employmentor may have heard about the introduction of so-called “Grandparental Leave”. Just when you thought that the position with Family-Friendly Rights had been clarified, the Government have confirmed that there will be another change, this time entitling grandparents to take Shared Parental Leave (and Pay), although this is not likely to come into force until 2018.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.

Exclusivity clauses in zero-hours contracts unenforceable

Posted by: on May 26, 2015 | No Comments

As of today, 26 May 2015, law is in force which prevents employers who utilise zero-hours contracts from having exclusivity clauses in those contracts, or enforcing such clauses if they are already included in the contracts.

Employers will no longer be able to enforce any clause or provision in a zero-hours contract which:

  • prohibits a worker from doing work or performing services under another contract (or any other arrangement); or
  • prohibits a worker from doing work or performing services without the employer’s consent.

It is important to stress that in spite of all the hype and media attention that they attract, zero-hours contracts are still legal. They can be a useful tool for employers, in particular those who require a flexible or seasonal workforce. What is clear, however, is that what employers can do under a zero-hours contract is changing; further laws and regulations on the use of zero-hours contracts are expected later this year. The Government had discussed introducing legislation to create a new protection from detriment for zero-hours contract workers who take jobs under other contracts, however as yet no such legislation has been brought into force.

In addition to the new changes for zero-hours contracts, the maximum financial penalty that can be imposed on employers who fail to pay their employees the national minimum wage has increased. The penalty imposed can now be calculated on a per worker basis (rather than on a per employer notice basis) up to a maximum of £20,000. E mploymentor subscribers can always find more information about national minimum wage and the current rates by logging in to our website.

If you are concerned about zero-hours contracts or any other aspect of this article you should first speak with a member of our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice.  Specific legal advice should be taken in any particular circumstance.

(Another) Holiday Pay Update

Posted by: on May 5, 2015 | No Comments

Just when we thought we were almost settled on what is and is not included in the calculation of holiday pay, there has been another potential shake up in the holiday pay world.

You may remember at the end of March this year we were able to report, following the case of Lock v British Gas, that commission was definitely included when calculating holiday pay.  That meant that, following the Bear Scotland case of October 2014, both (non-voluntary) overtime and commission should be considered when calculating holiday pay, although a decision on how exactly to make those calculations was awaited.

Last week, British Gas appealed against the decision of earlier this year.  The appeal is focused on the legal basis that the Tribunal used to come to its decision in concluding that commission should be considered in calculating holiday pay.

What does it mean?

The British Gas case is focused on commission, meaning that there is a real possibility that the law on commission payments and holiday pay will change once more.   The appeal also calls into question the decision making in the Bear Scotland overtime case, meaning that, potentially, the position on overtime may too alter.

The Employment Appeal Tribunal will hear the appeal towards the end of 2015.  Unfortunately a Judgment at the end of this year will not necessarily mean the end of the matter; either party may appeal the Employment Appeal Tribunal’s decision to the Court of Appeal and ultimately the Supreme Court, or may attempt to refer the matter again to the Courts in Europe.

What should you do?

Unfortunately this appeal makes an already uncertain area of law more uncertain.  The appeal means that, certainly the position on commission payments, is now not settled and could alter. Employers should remain cautious about making any big statements or changes based on a legal position which could well change in the next 12 months, and should seek advice from our team of solicitors prior to making such statements or changes.  We have a number of options available to employers to help them delay any decision making (if necessary) until after the outcome of the appeal hearing, or to implement interim measures if changes are already underway.

If you would like further advice and guidance on this recent decision, please contact a member of the Employmentor Team for advice.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.