October 2023

Holiday pay claims no longer restricted by 3-month gaps between deductions

The Supreme Court has recently handed down its judgment in the case of Chief Constable of Police Service of Northern Ireland v Agnew.

The Claimants were police officers and civilian staff working for the police in Northern Ireland. They brought claims for underpayment of holiday pay after having historically received basic pay only during periods of annual leave. The parties agreed that there had been an underpayment, and that holiday pay should have been calculated to include periods of compulsory overtime. The issue before the Supreme Court was how far back the Claimants were entitled to go with their claim.

In Bear Scotland v Fulton the EAT had previously concluded that deductions could only be linked in a series if there was a gap of three months or less between each deduction.

But the Supreme Court has now held that employees can claim for historic underpayments of holiday pay even if there are gaps of more than three months between deductions. The Court concluded that the period during which a claim can be brought is three months from the date the last payment was made, but that this three-month limit does not restrict or qualify the meaning of a “series” of deductions.

From an employer’s perspective, it’s important to remember that the impact of this judgment is mitigated by the fact that claims for unlawful deductions from wages under the Employment Rights Act 1996 can now only go back two years (though this is not the case in Northern Ireland where the two year back stop does not apply).

There are some important differences between Northern Irish and English employment law (although much is the same), however the Supreme Court is the final court of appeal on points of law for all UK civil cases and it is extremely rare for its decisions to be overturned.

Government publishes response to proposal on reforming parental leave and pay

The government has published a response to a 2019 consultation on proposals for reforming parental leave and pay,

The response sets out substantive changes to paternity leave which will be implemented in due course:

Employed fathers and partners will be able to take the current entitlement of up to two weeks’ statutory paternity leave in two separate blocks of one week of leave if they wish, rather than having to choose between taking one week or two weeks.
Employed fathers and partners will be able to take their statutory paternity leave at any time in the first year (within 52 weeks of birth or placement for adoption), rather than just in the first eight weeks after birth or placement for adoption.
Currently, notice of the date on which an employee wants paternity leave to start has to be provided 15 weeks before birth. The government will change the notice requirements for statutory paternity leave to make these more proportionate to the amount of time the father or partner plans to take off work. It is proposed that fathers will need to give 28 days’ notice before each period of leave they intend to take, although the notice of entitlement will still need to be given 15 weeks before birth.

Although the consultation also considered other family-related leaves, including maternity leave and pay, maternity allowance, and unpaid parental leave, no changes are currently proposed to these entitlements.

A genuinely consensual termination cannot be an unfair dismissal

In the case recent of Riley v Direct Line Insurance Group the claimant had Autism Spectrum Disorder. He was absent from work due to this condition for several years. A return to work was attempted but was unsuccessful. Medical evidence indicated that he would never be able to return to work in his role. The claimant was informed that, under a permanent health insurance scheme called Pay Direct offered by UNUM, his salary payments would continue to be made up to retirement age if his employment ended. The claimant checked with UNUM and then agreed to this proposal. A formal termination meeting was held with him. The letter sent following this meeting referred to him having been ‘dismissed’.

The claimant brought a claim for, amongst other things, unfair and discriminatory dismissal. The tribunal found that the claimant had not been dismissed. The termination of his employment was consensual meaning that the claims of unfair and discriminatory dismissal failed.

The Employment Appeal Tribunal agreed with the tribunal’s conclusions. In particular, there was the required clear evidence of a free and consensual termination. The claimant was not tricked or coerced in any way. He participated in the discussions, was given time and fully understood what he was doing. The existence of a letter which said the claimant was dismissed did not undermine this conclusion – the termination was agreed consensually before the letter was written.

If a simple settlement agreement had been agreed between the parties in this case at the point that the consensual agreement to terminate was reached then this whole claim could have been avoided. A settlement agreement would have prevented the employee seeking to bring tribunal proceedings, after the event, arguing that they were ‘tricked’ and never consented in the first place. Employers who find themselves in similar situations should give serious consideration to requiring the employee to enter into a settlement agreement recording the consensual agreement between the parties.

Dress codes at work: key things to consider

Employers are able to issue employees with reasonable workplace instructions across a wide variety of different areas of working life. Dress code is one of these. Employers can set rules regarding acceptable workplace dress. Sometimes what is acceptable will be linked to employer branding and image (think of uniforms used in restaurants and hotels), sometimes it will be dictated by health and safety requirements (think of work boots and high visibility clothing on building sites) and sometimes it will merely be linked to maintaining a certain level of professionalism and separating ‘leisure’ from ‘work’.

Regardless of the impetus any form of dress code in the workplace, employers should make sure that the rules are reasonable, easy to understand and non-discriminatory. In particular, we suggest that employers consider the following:

Make sure that your dress code does not unreasonably impinge on an employee’s cultural, racial or religious clothing if at all possible. There are obviously circumstances (for example, where health and safety concerns are involved) where this will not be possible but, outside of this, any dress code should not include any discriminatory requirements unless you are satisfied that they can be justified.
Gender-specific clothing rules should be avoided as these are likely to be found to be discriminatory on grounds of sex, sexual orientation and/or gender re-assignment.
If your business adopts a hybrid-working pattern then consider the relaxation of any dress code for days when the employee is not in the office.
Make sure that you set out any dress code rules in a clear, accessible policy or other document, draw employee attention to it and explain the action that will be taken against employees in the event of non-compliance. It is likely that wilful non-compliance would be dealt with as a disciplinary matter but employers need to be careful not to be too heavy-handed and to take the time to understand any reasons underlying the employee’s non-compliance.
Take account of the impact of any dress code on employee wellbeing. If employees do not feel comfortable at work then this could impact on productivity and wellbeing.

Employee dismissed after telling employer she was pregnant wins case for unfair dismissal and discrimination

An assistant manager at a restaurant has succeeded in her claim for pregnancy discrimination and unfair dismissal against her employers. In the case of Bawej v Huangs Grill Limited the claimant was working at one of two ‘sister’ restaurants run and operated by the respondent as the assistant manager when she discovered she was pregnant. After her employer became aware of her pregnancy, they informed her that she was to be transferred to the ‘sister’ restaurant but at a salary which was over £4,000 lower and without managerial responsibility.

The Watford Employment Tribunal held that she had been unfairly dismissed and discriminated against because of her pregnancy. At the hearing itself the respondent tried to argue that there were underlying concerns about the claimant’s performance but could provide no evidence of this. The claimant was awarded £35,492.31 in compensation. This case is a reminder of the importance of treating pregnant employees fairly and of the high financial cost of failing to do so.

Five things you need to know about right to work checks

The right to work checks in place in the UK are complex and detailed. Businesses should take advice on a case-by-case basis to make sure that they stay on the right side of the law. We have set out below 5 facts about right to work checks:

You must check all job applicants’ right to work in the UK before you employ them. If you do this correctly in accordance with the government’s requirements then this will provide your business with a ‘statutory excuse’: a defence against a civil penalty (due to rise to £45,000 per breach in 2024) which would otherwise be payable for employing an illegal worker.
There are three main ways of checking an applicant’s right to work which, if completed correctly, can provide a ‘statutory excuse’: online if they have a share code; by checking the applicant’s original documents; or by using an identity service provider that offers Identity Document Validation Technology (IDVT). Different methods of verification are required depending on the nationality and immigration status of the applicant involved.
In some circumstances, an applicant will not be able to demonstrate a right to work using any of the above methods. In such cases you must ask the Home Office (using the Employer Checking Service) to check the applicant’s immigration status. They will provide a Positive Verification Notice (PVN) if the applicant has the right to work. The PVN must be kept as this can be used as a defence against a civil penalty.
Checks of manual documents must be done in a certain way following a three-step process: Obtain, Check and Copy. The actual documents must be seen in-person. Copies are not acceptable.
The list of acceptable documents is published by the Home Office and is split between List A (permanent right to work) and List B (temporary right to work). If you conduct the right to work checks correctly before employment begins and obtain documents from List A, you will establish a continuous statutory excuse for the duration of that person’s employment with you. You do not have to conduct any follow-up checks on this individual. If you conduct the right to work checks correctly after obtaining documents from List B, you will establish a time-limited statutory excuse. You will be required to conduct a follow-up check in order to retain your statutory excuse.

Employee who hit back against employer’s requirement to install work apps on her personal phone was unfairly dismissed

In the recent case of Razan Alsnih v Al Quds Al-Arabi Publishing & Advertising the London Central Employment Tribunal were asked to look at the fairness of the dismissal of an on-line news editor who was sacked after refusing to install a work-related app on her personal phone. The app was used to communicate about on-line content and messages were exchanged throughout the day and night. The claimant objected to having the app installed on her personal phone as she felt that it would interfere with her private life and wellbeing. The respondent added her to the group without her consent and, when she challenged this and refused to use the app on her phone, terminated her employment.

The tribunal concluded that the claimant had been dismissed for conduct. They looked at the legal test in conduct dismissal cases and found that the respondent did genuinely believe that the claimant had committed an act of misconduct (refusing to use the app on her personal mobile phone) but that the respondent had failed to carry out a proper investigation and did not hold the belief on reasonable grounds (no disciplinary hearing was held, alternative ways of accessing the app were not fairly considered and the claimant was never warned that her job was at risk if she did not use the app).

The tribunal concluded that no reasonable employer would dismiss an employee for refusing to put an intrusive work-related app on their personal mobile phone, using their personal number. They found that it was reasonable for the respondent to insist on their staff, including the claimant, using the app. What was unreasonable, was the expectation that the claimant put it on her personal mobile. It meant she could not separate her home and work life.

The tribunal also found that the claimant’s dismissal was procedurally unfair as no formal investigation or disciplinary hearing was carried out. The claimant’s claim of unfair dismissal succeeded and she was awarded one year’s pay (the statutory cap in this case) as compensation.

The issues in this case could have been largely avoided had the employer provided a work mobile phone and taken measures to allow notifications to be paused or muted outside of working hours. This case serves as a reminder that employers must look to balance their quest for ever more efficient communication with the importance of employees being able to separate home and work life.

Let’s Improve Workplace Wellbeing Kent Hub Event

With well-being increasingly a concern for employers, we are delighted to let you know that the team behind the award-winning proactive mental health and workplace wellbeing programme Thrivall are hosting the quarterly Lets Improve Workplace Wellbeing Kent Hub meeting on 16^th November. Some of you will be familiar with the work of Thrivall having been signposted to them when you have requested us to direct you towards employee well-being services.

This special morning event will bring together wellbeing leads and HR professionals from a range of Kent-based employers of all sizes and sectors to connect, learn and share around all things workplace wellbeing. The team at Hunter Law are looking forward to attending this event and Thrivall is happy to extend the invite to clients of Hunter Law. We and Thrivall would be delighted to see you there.
You will get the opportunity to:

Hear three guest speakers share their experiences of developing workplace wellbeing initiatives within their own organisation
Contribute to facilitated roundtable discussions when you get to share your own experiences, and learn from others
Make new connections and enjoy networking over refreshments.

Click here to register your interest: Let’s Improve Workplace Wellbeing Kent Hub Event

Tesco makes the right to request flexible working a Day 1 right – before the law requires it

Tesco has implemented changes to its flexible working policy to allow all staff members to request flexible working from their first day of employment. The company’s more than 300,000 employees now have the right to ask for part-time or flexible working hours from day one, even though the current statutory position is that employees need to have six months’ continuous service to be entitled to make a statutory flexible working request. The government has indicated that it intends to pass primary legislation to make flexible working a day 1 right but this has not yet been published or implemented.

Increase in civil penalties for employers found to have employed illegal workers

Linked to our right to work checks section above, the government has announced plans to triple the maximum fine it can impose on employers who are found to have employed a person who does not have the right to work in the UK. Increased penalties are set to commence in early 2024. Fines for employers who employ illegal workers will increase from £15,000 to £45,000 for a first offence and from £20,000 to £60,000 per breach for repeat offenders.

Employers could also face criminal penalties if they knowingly employ someone who does not have the right to work in the UK.

The risk of criminal liability coupled with the substantial increase in the level of fines payable means that employers should be more focused than ever on making sure that their right to work checks are fit for purpose and accord with all legal requirements.

Disclaimer: This post is for information purposes only. Reasonable steps have been taken to provide accurate information, but no responsibility is taken by the author (Hunter Law Ltd) for any consequences arising from its usage.

This post is not intended to and does not constitute legal advice and you should instruct a solicitor formally should you require this.