Supreme Court ruling on holiday pay
On 4 October, the Supreme Court ruled that a series of deductions from holiday pay are not broken by either a three-month gap or by making a payment to correct the underpayment. This means that anyone suffering a series of underpayments can bring a claim for unlawful deduction of wages in respect of holiday pay, regardless of whether there has been a break or not. It is important to remember however, that for holiday pay, commission and bonuses, in England and Wales employees can only claim for unlawful deduction from their wages going back two years from the time of the deduction/the last in a series of deductions. This overturns regulations introduced after the “Bear Scotland” judgment from 2014 which held that a gap of more than three months in a series of holiday underpayments would break the chain of deductions for an employee claiming “a series of deductions”. Although this latest ruling pertains to a case involving the Police Service of Northern Ireland, it is binding throughout the UK (albeit time limited in England, Wales and Scotland). It is worth noting that, according to Ministry of Justice statistics, the most common type of claim brought between April 2023 and June 2023 was for unlawful deductions from wages. Employers are advised to review their holiday payment records so they don’t get caught out by claims for underpayments.
Protection against harassment legislation enacted
The Worker Protection (Amendment of Equality Act 2010) Act 2023 received Royal Assent on 26 October 2023 after amendments proposed by the House of Lords were accepted. Due to come into force in October 2024, it imposes a duty on employers to take reasonable steps to prevent their staff from being sexually harassed during the course of their employment. Employers breaching their duty face a potential uplift of up to 25% to any sexual harassment compensation imposed by employment tribunals. The definition of ‘reasonable steps’ will be the subject of guidance in due course.
The Equality and Human Rights Commission are in the process of preparing a new statutory code of practice on sexual harassment in the workplace, which should be available when this Act comes into force.
Predictable working patterns
The Workers (Predictable Terms and Conditions) Act 2023 received Royal Assent on 18 September 2023 and is expected to come into force in September 2024. It introduces a new statutory right for employees and workers to request a more predictable working pattern (covering various aspects such as what days they work and what times of the day they work, to name but a few). However, eligibility criteria apply such as the worker being employed by the same employer (whether or not under the same worker’s contract) at some point during the month immediately preceding the application. Workers with variable hours, those on fixed-term contracts of less than 12 months, and agency workers will all benefit from this new right. Only two applications per year can be made and applications must detail what change is required and from when. Any such application will form the start of a formal process, with employers having to deal with these requests in a reasonable manner and notifying employees of their decision within one month. Should a request be accepted, then employers must provide the workers with a new contract within two weeks, and this contract must not contain any less favourable terms for the worker. There are currently six grounds listed on which to refuse a request such as planned structural changes, and the burden of additional costs.
Monitoring employees – ICO guidance
The ICO has issued guidance for employers to help them comply with data protection legislation. It includes an explanation of what monitoring means, how to identify a lawful basis for doing so, how to ensure monitoring is fair and proportionate, and how to discuss the introduction of monitoring with workers in a concise and easy to understand manner. Employers must also make workers aware of the nature, extent, and reasons for monitoring them, along with considering the least intrusive means necessary to do so. The intention is to provide greater regulatory certainty, protect workers’ data protection rights, and help employers build trust with workers and third parties. Employers are strongly encouraged to review the ICO guidance and amend their policies as necessary.
National Minimum Wage report
The 2023 report by the Low Pay Commission (LPC) reveals that one in five NMW workers were underpaid. Those workers who are particularly affected are those who have stayed with the same employer. HMRC estimates that, contrary to the 3,000 notifications it receives about low pay, the reality is that hundreds of thousands of workers are not paid the correct rate.
Ignite Portal
For those of you who have signed up for the Ignite Portal, further new features have been introduced including the ability to conduct exit interviews and store the leaver’s answers through the software; and a department history report which shows numbers of staff in any one department at a given time and who they reported to. This is designed to show how departments have changed over time. For more information, please contact Kash Dosanjh or Gemma Clark from our Employment team.
Interview practice
In our increasingly competitive labour market, it’s becoming apparent that many up-and-coming professionals need to enhance their interview skills to gain the job they deserve. The main hurdle that people most commonly face is nerves. Historically, people conduct practice interviews with their friends and family to learn how to overcome these nerves, but this never truly compares to the real thing. To bridge this gap, our Employment and HR team are offering real-life interview practice, tailored to the role and industry that you are applying for. To find out more, visit our website.
Case Update
Dobson v Cumbria Partnership NHS Foundation Trust ET/2401798/17 (10 August 2023)
In a recent case of indirect sex discrimination heard by the EAT (which has remitted the case back to the employment tribunal), the tribunal found that the decision to dismiss a nurse who would not work at weekends due to childcare responsibilities did not amount to discrimination. Mrs Dobson had two disabled children and, as a result, relied on the ability to have a fixed work schedule as a community nurse, for two days a week, excluding weekends.
In 2013, the NHS Trust that employed her asked her to work the occasional weekend, but after Mrs Dobson explained her family dynamic, the matter was dropped. Subsequently in 2016 her employer decided to change the team’s working patterns, issuing a new policy to include weekend working in order to provide patients with 24/7 care. Mrs Dobson was asked to work the occasional weekend as part of the rota, but she refused citing childcare. She was dismissed and reemployed on the new arrangements and consequently issued claims against her employer for unfair dismissal and indirect sex discrimination.
The tribunal found that although the Trust’s requirement for Mrs Dobson to work the occasional weekend put women at a particular disadvantage because of childcare responsibilities (and was therefore indirectly discriminatory), it was a proportionate means of achieving a legitimate aim and that the Trust had explored every alternative thoroughly. In short, the tribunal concluded that the Trust’s legitimate needs outweighed the disadvantage caused to Mrs Dobson This was for a number of reasons – in particular, the Trust noted that if Mrs Dobson did not work weekends, other more senior (and therefore more expensive) staff had to cover these shifts and this had an impact on the management during the week. The tribunal also considered the fact that Mrs Dobson had refused to change her working hours at all, whereas the Trust had attempted to reach a compromise. It also noted that Mrs Dobson could call on family help, not least her husband, to provide childcare on the occasional basis she was needed. The tribunal rejected her claim but did rule that the original tribunal should have considered her childcare responsibilities more carefully because women rather than men tended to bear the greater burden for looking after children, describing it as the ‘childcare disparity’.
Mrs Dobson’s claim may have succeeded in other circumstances. However, in this case, the Trust had properly consulted and considered other alternatives, all of which Mrs Dobson had rejected. Each such case will turn on its facts but, as the new legislation on flexible working confirms, employee consultation is a vital part of the process.
