HOLIDAY PAY UPDATE

HOLIDAY PAY UPDATE

Pay for voluntary overtime worked on a regular basis can amount to “normal remuneration” for the purposes of calculating holiday pay, holds the EAT in Dudley Metropolitan Borough Council -v- Willetts.

The employees worked for the Council as electricians. plumbers, roofers, etc. who worked contracted hours in their day jobs but also worked overtime on an entirely voluntary basis, which resulted in additional payments.

The Council argued that the overtime payments lacked the necessary link to the performance of tasks required under the employment contract and, therefore, were not “normal remuneration”.  This was rejected by the EAT, which found there was a clear link between the payments and the performance of their duties, because during the overtime hours worked the employees were undertaking essentially similar tasks as they did when working their contracted hours.  The EAT also indicated that to exclude such payments from holiday pay would result in a financial disadvantage to workers which would or may deter the taking of annual leave, which is contrary to EU legislation.

Whether or not pay received in respect of voluntary overtime amounts to normal pay will depend upon the regularity of that overtime and overtime pay, which is likely to fall to be determined on a case-by-case basis.

This decision of the Employment Appeals Tribunal represents binding law and members are advised that they may need to take steps to review existing holiday pay arrangements.  Please contact the legal team for further advice.

 

SUPREME COURT RULES EMPLOYMENT TRIBUNAL FEES UNLAWFUL

Supreme Court rules employment tribunal fees unlawful.

After a 4-year legal battle brought by UNISON, the Supreme Court has ruled that Employment Tribunal fees are unlawful.

Since July 2013, employees have required to pay fees of up to £1,200 if they wanted to bring a claim against their employer, unless they qualified for remission.  This subsequently led to a 79% reduction in the number of claims being brought in the Employment Tribunal.

In a 41-page judgement, the UK’s highest court has rules that fees are illegal because they effectively prevent access to justice.  Moreover, they were also found to be indirectly discriminatory against women.

The Government has announced that it will cease taking fees for Tribunals immediately and will refund in excess of £30m to employees who were forced to pay fees in order to bring their claims.  It is likely that this judgement will also lead to a dramatic rise in the number of Employment Tribunal claims being brought in the future, given that this financial barrier will be removed.

Scottish Engineering offers an Employment Tribunal Management Service to our member companies.  Subscription to this service provides cover in respect of all administration preparation and representation relating to Tribunal claims.

ETMS Summary & Form

Further details can be obtained by contacting the office on 0141 221 3181.

BREXIT UPDATE

BREXIT Update.

Brexit negotiations took place, with the first meeting being held on 19 June 2017, conducted by the EU Chief Negotiator, Michel Barnier, and the Secretary of State for exiting the EU, David Davis.  The following items were on the agenda:-

  1. Agreement was reached in relation to dates, organisation and priorities for the negotiations.
  2. The languages of negotiation were agreed to be English and French.
  3. Agreement was reached in relation to the structure of the negotiations, with the aim being to have one week of negotiations per month and to use the time in between meetings to work on and exchange proposals.  During the first phase of negotiations the topics to be discussed will cover citizens’ rights, the single financial settlement and other separation issues.
  4. Negotiations will start with regards to the Northern Ireland/Irish border and will be focussed on the protection of the Good Friday Agreement and the maintenance of the common travel area.

 

WORK EXPERIENCE – BETH MILLER, JOHNSTONE HIGH SCHOOL

Work Experience – Beth Miller, Johnstone High School

Monday 5th June

During my week of work experience, I hope to learn about the roles of the people who work at Scottish Engineering.  I would also like to learn about the jobs of the people who work at the member companies that I am going to be meeting this week.  This week will be a great opportunity to get an insight into the world of work and it will be exciting to learn about what the people at this company do with their time. I have also been given a social media project to complete – I must find a way that social media could be used to promote the company and teach the staff (dinosaurs) how to use Twitter.

HOLIDAY PAY UPDATE

HOLIDAY PAY UPDATE

Fulton and Others -v- Bear Scotland and Others

The Bear Scotland case above, which concerned inclusion of non-guaranteed overtime payments in the calculation of 20 days’ annual leave, returned to the Employment Appeal Tribunal recently.

The question referred was whether the finding in the original judgment, that a break of more than 3 months between non-payments or underpayments broke the chain in a series of such deductions, resulting in claims being time-barred, was binding.

The Employment Appeal Tribunal found that this aspect of the previous ruling was binding and rejected the Claimants’ argument that the previous finding was not “sufficiently material” to the previous decision to be regarded as such.

Therefore, it is possible for employers to argue that if there is a break of 3 months or more between holiday payments which were not calculated in accordance with the original judgment, then any Tribunal claims relating to underpayments prior to the break are time-barred.  Employers should also remember that in respect of any Tribunal claims for underpayment of holiday pay lodged after July 2015, that these are limited to 2 years’ arrears in any event.

AVOIDING DISCRIMINATION IN RECRUITMENT….

AVOIDING DISCRIMINATION IN RECRUITMENT…..

Discrimination law is aimed at protecting those with the relevant protected characteristics at all stages in employment – from recruitment to post-employment termination.

In the recent case of Government Legal Services v Brookes the Employment Appeal Tribunal upheld an Employment Tribunal decision that a job applicant with Asperger’s syndrome suffered unlawful disability discrimination because of the multiple choice test she was required to sit as part of the recruitment process.

The GLS had an annual recruitment process, the first stage of which required applicants to sit an on-line multiple choice test on decision making ability.  The Claimant asked for adjustments to be made to the process (including changing the way in which answers were given).  She was advised it was not possible to adjust the test although other adjustments were made including the time allowed to sit the test. Ms Brookes scored below the pass mark and her application was not progressed.

She argued GLS had indirectly discriminated against her by reason of her disability and the treatment was unlawful . . . . the failure to progress her application amounted to discrimination because of something arising in consequence of her disability. She also argued that there had been a failure to make reasonable adjustments.

The ET upheld each of her claims. It found that there was a provision, criterion or practice (a PCP) namely, requiring all applicants to take and pass the on-line test.  The Tribunal accepted the PCP generally placed those with Asperger’s at a particular disadvantage compared with those who did not have the condition.  The evidence showed Ms Brookes was put at that disadvantage since her impairment resulted in a lack of social imagination particularly in hypothetical situations.  The Tribunal still had to decide if the treatment was justified.  There was a legitimate aim – testing of fundamental competence however, the Tribunal felt the means to achieve the outcome was not proportionate. GLS could have achieved the aim in a less discriminatory way namely, by implementing Ms Brookes proposed adjustments which were deemed to be reasonable.

Following the decision Ms Brookes was awarded compensation of £860.00 and the Tribunal recommended GLS issue a written apology to the Claimant and review its recruitment procedures to introduce flexibility in psychometric testing for disabled applicants.  On appeal the EAT agreed each ET finding.

The decision provides a reminder of the wide application of discrimination law.  Employers must give proper consideration to all candidates at all stages.  Applying a rigid and inflexible recruitment policy could give rise to risks.  Proper consideration should be given at an early stage to potential adjustments that may be needed and requests made by applicants should be fully considered.  The Equality and Human Rights Commission’s Code of Practice provides employers with helpful guidance on this and other discrimination areas.

LIKE GIANT PANDAS, APPRENTICES ARE ‘A PROTECTED SPECIES’……

LIKE GIANT PANDAS, APPRENTICES ARE ‘A PROTECTED SPECIES’…..

The recent employment tribunal case of Kinnear v Marley Eternit Ltd highlights the potential financial risks of dismissing an apprentice before he/she completes their apprenticeship.

Mr Kinnear had entered into a 4-year, fixed-term apprenticeship with his employer, which was due to expire in November 2018, upon completion of his qualification as a Roofer.  However, Mr Kinnear was made redundant in June 2016 due to a downturn in work.

Mr Kinnear was awarded £25,000 in respect of damages (the maximum amount an Employment Tribunal can award for a breach of contract claim).  This was given on the basis that the Employment Judge found Mr Kinnear would be unlikely to be able to finish his apprenticeship with another firm because of his age and, as such, his future losses were likely to stretch over some years.  Consequently, he would be disadvantaged in the labour market going forward, by not having attained his qualification in his chosen trade.

Employers should note that training is the primary purpose of a contract of apprenticeship, while doing work for the employer is secondary.  As such, apprentices employed under a contract of apprenticeship have enhanced rights on termination of their employment compared to ‘ordinary’ employees, and employers owe them greater obligations.  Moreover, an employer has significantly less scope for dismissing an apprentice employed under a contract of apprenticeship than an ‘ordinary’ employee.  Accordingly, if a business finds itself experiencing a downturn in trade, it will require to demonstrate that it has taken all reasonable steps to find alternative placements for the apprentices who are at risk, as redundancy really should be a last resort, given the risks involved.  Furthermore, if the apprentices have more than 2 years’ service they will be eligible to bring claims for unfair dismissal as well as damages claims for breach of contract.

Any member companies who employ apprentices and are entering a redundancy situation should contact Scottish Engineering for advice.

 

HOLIDAY PAY UPDATE

Holiday Pay Update. 

British Gas has been refused leave to appeal to the Supreme Court in Lock -v- British Gas Trading.  In Autumn 2016, the Court of Appeal held in the Lock case that employees whose wages include an element of commission can no longer be paid less when they are on annual leave.  As such, the amount employees get for their holiday pay must be based on both their basic pay and any commission they are normally entitled to.

The case will now go back to the Employment Tribunal, in order to determine whether Mr Lock was underpaid and, if so, what the appropriate period for the calculation should be.

Therefore, any employers who currently operate a commission-based structure will require to include this in holiday calculations going forward, to ensure they comply with their legal obligations.

Any member companies impacted by this decision should contact Scottish Engineering for advice.

 

NEW LIMITS FOR UNFAIR DISMISSAL AWARDS, REDUNDANCY PAYMENTS AND GUARANTEE PAYMENT

New limits for unfair dismissal awards, redundancy payments and guarantee payment.

The increases will come into effect on 6th April 2017:

  • The maximum amount of “a week’s pay” for the purpose of calculating a redundancy payment or for various awards including the basic or additional award of compensation for unfair dismissal will increase from £479 to £489
  • Limit on amount of compensatory award for unfair dismissal will increase from £78,962 to £80,541
  • Limit on amount of guarantee payment payable to an employee in respect of any day will increase from £26 to £27

GENDER PAY GAP REPORTING

GENDER PAY GAP REPORTING.

ACAS has now published guidance on gender pay gap reporting for private and voluntary sector companies in advance of the snapshot date (5 April).  There are also guidance and fact sheets available for employers which can be accessed at:

www.acas.org.uk/index.aspx?articled+5768

The Government have also advised that public sector employers will be required to report on their gender pay gaps in similar fashion from 31 march 2017.  Draft regulations governing the public sector have been issued recently.