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August ByteSize Employment Law

Here’s what’s in this edition of ByteSize Employment:



Holiday pay and overtime – the saga continues!

The question of what employees are entitled to be paid when they take holiday was the biggest issue in HR in 2014 and continues to perplex us this year. The Northern Irish Court of Appeal in a recent case (Patterson v Castlereagh Borough Council, June 2015) has decided that there is “nothing in principle” to stop voluntary overtime being included in holiday pay.

Recent cases have established that basing holiday pay on basic pay alone is incorrect and that commission and guaranteed and non-guaranteed overtime should be included in the calculation (see our January ByteSize for more details). The question of how to deal with voluntary overtime is still outstanding.

The Patterson case indicates that whether voluntary overtime is “normally” carried out and should therefore be part of holiday pay is a question of fact for tribunals to decide. Whilst the judgment isn’t legally binding on UK courts, it is persuasive. Employers should consider (if they haven’t already!) whether voluntary overtime is worked frequently enough to be ‘normal’ pay and so reflected in holiday pay.

If you have any queries on this area please contact us. You can rest assured we will be keeping you up to date with the latest news in this important area.



Pregnancy – bad news for women’s careers?

The Government’s Pregnancy and Maternity-Related Discrimination and Disadvantage report (July 2015) is an eye-opener. It investigates pregnancy discrimination in the workplace, from interviews with over 3,000 employers and even more mothers.

Around 1 in 9 mothers (11%, or approximately 54,000 mothers p.a.) reported being dismissed or treated so poorly they had to leave, because of pregnancy or maternity leave. Figures for harassment or negative comments on pregnancy and flexible working are even higher: 1 in 5 (or approximately 100,000 mothers p.a.). Around 84% of employers felt supporting pregnant women and those on maternity leave was in their business’ interests.

Is there a mismatch between those aims and the reality? Given the increased Government focus on women at work (see also July’s “Closing the Gender Pay Gap” consultation ), employers should review their family friendly policies, pay schemes and actual practices, making any changes before legislation on publishing such statistics emerges.



A recent decision in the Employment Appeal Tribunal has decided that employees can’t carry  unused holiday accrued during sickness over indefinitely.

Workers with accrued holiday from sick leave can carry it over for up to – but no longer than – 18 months from that leave year’s end. The EAT (Plumb v Duncan Print, July 2015) confirmed this for workers unable, or unwilling, to take their holiday because of sickness. 

It also held that workers cannot be made to prove they were physically unable to take holiday, because of their sickness, to benefit from these carry-over rules. This is important for both calculating entitlements to payment in lieu of annual leave on termination of employment and for companies managing sickness absence. For more tips on managing sickness absence, see our latest blog. 



Drastic drop in tribunal claims leads to inquiry

The question of whether the introduction of employment tribunal fees has had the consequence of preventing or impeding access to justice has led to another inquiry.

The House of Commons Justice Select Committee has launched its own inquiry into employment tribunal fees, in addition to the existing Ministry of Justice’s internal review. Employment tribunal fees (ranging from £160 to £250 to issue a claim, followed by a further £230 to £950 for the actual court hearing) were introduced two years ago to assist with the  tribunal system’s costs and to deter frivolous cases.

What’s being investigated?

The effect of the introduction of fees on access to justice and the volume (and quality) of cases. Why is this inquiry different to the MoJ’s? The Committee will seek the public’s views, until the end of September this year. Meanwhile, UNISON’s fees challenge was heard by the Court of Appeal in June this year: judgment is now awaited. 



Question: When is travelling also work?

Answer: when you are a peripatetic worker, according to the Advocate General in an opinion given in June 2015 in the case of Federación de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA (ECJ).

The Advocate General indicated that he considered that travelling time to and from different customers on a route determined by the employer counted as “working time”, even when the travelling time is the first or last journey of the day.

The final ECJ judgement is expected before the end of 2015 and will be watched closely by those whose employees do not start and finish the day at the employer’s premises.


Posted on August 19, 2015

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