Pay and benefits, Equality

Court of Appeal upholds decision that retail workers can compare pay terms to distribution workers due to common terms applying at the establishments. Facts Around 30,000 predominately female retail employees have submitted equal pay claims against the organisation, alleging there are not receiving equal pay in comparison to the pay terms afforded to predominantly male distribution employees. As set out within s79(4)(c) of the Equality Act 2010, claimants can rely on comparators where “…

Terms and conditions , Pay and benefits

Employment Appeal Tribunal – September 2018 The Employment Appeal Tribunal (EAT) has ruled that an employee was entitled to a written statement of terms despite only working for the organisation for six weeks. This case concerned three European claimants who were employed by a hotel as waiting staff and claimed they were poorly treated. Following a complaint to management about numerous issues, such as shortfalls in their wages, falsification of their wage slips and late payments, they were…

Pay and benefits, Termination

Employment Appeal Tribunal – November 2018 Contractual term preventing ill-health capability dismissal whilst receiving PHI benefits implied by EAT. Facts The employee worked as a security agent under a contract entitling him to a long-term disability benefit plan, which expressly stated that the benefits would cease if his employment was terminated. In October 2012, the employee commenced sick leave due to depression and his employment was subsequently outsourced to ICTS under the…

Pay and benefits

European Court of Justice (ECJ) – November 2018 The ECJ has ruled that domestic law does not prohibit the right for employees to be paid in lieu for untaken annual leave at termination of employment. Facts The ECJ was asked to consider two separate cases from Germany that concerned workers who, when their employment was to terminate, had requested an allowance in lieu for annual leave that they not taken. The first worker had not taken any annual leave at all during the last five…

Pay and benefits

Court of Appeal – July 2018 The Court of Appeal (COA) has ruled that a care worker who performed ‘sleep in’ shifts was ‘available for work’ and not 'actually working’ and so was not entitled to the national minimum wage (NMW) for the time spent asleep. Note. Permission to appeal this decision has now been granted by the Supreme Court who will consider grounds for appeal in due course. Facts This case relates to a situation which had, up until this point, been the cause of much…

Pay and benefits

European Court of Justice – November 2017  Essentially agreeing with the Advocate General's opinion, the ECJ have decided workers are entitled to carry over and accumulate their accrued but untaken holiday where the organisation doesn’t allow the worker to exercise their right to paid leave. This carry over right is not subject to any limitation and cannot be extinguished. In addition, the worker is not required to take the leave first before establishing whether they have the right to pay…

Pay and benefits

Court of Appeal - February 2013 A graduate, working voluntarily at a museum in pursuit of a career in that sector, was offered a six-week training scheme through her Jobcentre. She was told the scheme was ‘mandatory’ and she risked losing benefits if she did not participate. She challenged the lawfulness of the regulations.   Reilly, a geology graduate, was working voluntarily at a museum in order to fulfil her ambition of working in that sector. She was receiving Jobseeker’s Allowance (…

Pay and benefits

Employment Appeal Tribunal – July 2017 Here the EAT decided an employment tribunal was right to conclude that voluntary overtime that was normally worked should be included when calculating holiday pay.   EU law requires that workers should receive their ‘normal remuneration’ while taking their statutory holiday entitlement (20 days under EU law) for work that is ‘intrinsically linked’ to the work they usually do.   Case law, such as Lock v British Gas, has indicated that workers who…

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Pay and benefits

Employment Appeal Tribunal Scotland – May 2017 The Scottish Employment Appeal Tribunal has confirmed that breaks of more than three months in a series of holiday pay underpayments breaks the series, thereby limiting the scope for back pay   When Bear Scotland v Fulton was heard in the Employment Appeal Tribunal (EAT) in 2014, the EAT decided that ‘non-guaranteed’ overtime that is part of ‘normal remuneration’ should be included in holiday pay. But the EAT limited the scope for employees…

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Pay and benefits, Equality

Employment Appeal Tribunal February 2017 Here the EAT decided that the purpose of an employee’s request for a five-week holiday in Sardinia was to visit his family, rather than to attend religious festivals, and so refusing it was not discriminatory.   Gareddu, an engineer, had worked for London Underground for over 25 years. He was entitled to 38 days’ holiday a year, and between 2009 and 2013 had been allowed to take the whole of August off (five weeks) in order to visit his family…

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Pay and benefits, Equality

Employment Tribunal – January 2017 Here changes made to a pension scheme for judges was found by an employment tribunal to be less favourable treatment which the Ministry of Justice could not justify. This case was brought on behalf of 210 judges at various levels in the judiciary. They claimed that a new pension scheme disadvantaged them, and that this was age discrimination and, where the scheme disadvantaged female and ethnic minority judges, race and sex discrimination. The claimants…

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Pay and benefits

Court of Appeal – October 2016 Here the Court of Appeal held that commission based on results must be included when calculating holiday pay, confirming earlier decisions of the CJEU, an employment tribunal and the EAT. Lock was a sales consultant whose remuneration was made up of fixed basic salary and commission, based on sales achieved. His commission was variable, paid weeks or months later, amounted to a monthly average of £1,912.67, and represented over 60 per cent of his earnings.…

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Pay and benefits

Court of Justice of European Union – July 2016 Here the European court has confirmed that a period of convalescence serves the same purpose as sick leave, which means holiday due to taken during it may need to be carried over to the following leave year. Sobczyszyn, a teacher in Poland, was unable to take her accrued annual leave entitlement in the school summer holidays as her contract required, because she was undergoing an agreed period of convalescence. She asked to carry her leave…

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Pay and benefits

Employment Tribunal – May 2016 This is the first decision from an employment tribunal in England on whether voluntary overtime should be included in holiday pay calculations. The tribunal decided it should be. The case involved 56 claimants working on repairing and maintaining a local authority’s social housing. They had the option of working additionally on Saturdays and could also choose to go on standby every four weeks to deal with emergency call-outs and repairs. The employer…

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Pay and benefits

Court of Appeal – May 2016 An HR executive could not prove that a conversation held ten years earlier with the HR director from the company that was taking over his own was contractual and binding with regard to pension rights Cunliffe joined the company in this case as a senior human resources executive. His letter of appointment (although not his employment contract) said he could join the defined contribution (DC) pension scheme, which he did a year later. When the company was taken…

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Terms and conditions , Pay and benefits

High Court: February 2016 Here an employee failed to prove his bonus, which was lower than his colleagues’, was ‘irrational and perverse’, because the contractual rules permitted the employer to treat the employees differently   A derivatives trader’s contract of employment stated he was entitled to be considered for a discretionary bonus. The factors to be used when determining the level of bonus, such as the bank’s overall performance and his individual contribution, were described in…

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Pay and benefits

Employment Appeal Tribunal: February 2016 The EAT has confirmed that commission must be included in holiday pay, in line with the Bear Scotland holiday pay case on bonuses, but it’s likely a further appeal to the Court of Appeal will be required on the issue. In the meantime employers have no further guidance on how to pick an appropriate reference period for holiday pay calculations that must include variable pay.   The Employment Appeal Tribunal (EAT) has published its decision on the…

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Pay and benefits

Employment Appeal Tribunal: November 2015 Sleeping on site did not entitle a care home assistant to back payments of the national minimum wage for all the hours he was on site, as he was seldom called on to actually assist night care workers while there.   The national minimum wage (NMW) legislation specifies that working time can include time when workers are available for work at or near their place of work.   Shannon was an on-call night care assistant at a residential care home…

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Pay and benefits, Equality

Court of Appeal: October 2015 In this case, the claimant had worked for the employer for 23 years before retiring in 2003. He had lived with his partner since 1993 and, following their civil partnership in 2006, wanted to clarify the amount of pension his partner would receive on his death.   The Equality Act 2010 prevents occupational pension schemes from discriminating on the grounds of sexual orientation, which means civil partners must be treated the same way as spouses on the death…

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Pay and benefits

Northern Ireland Court of Appeal – July 2015 In this test case, the Northern Ireland appeal court decided there was no reason in principle why voluntary overtime should not be included in holiday pay.   Voluntary overtime is generally agreed to be overtime which the employer is not obliged to provide and which the employee can choose to work or reject. Patterson worked 52 hours over a reference period of 13 weeks, an average of four hours overtime a week, giving him additional pay of £60…

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Pay and benefits

Employment Appeal Tribunal – July 2015 A worker who had been off sick for nearly four years, and who had not taken or requested any holiday, was not entitled to be paid in lieu for all his unused holiday when his employment ended. This case also establishes that 18 months should be the ceiling on carrying over holiday untaken due to sick leave.   Under the Working Time Regulations 1998, workers are required to take their statutory holiday during the holiday year in which it accrued and…

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Pay and benefits

Employment Tribunal - April 2015 A tribunal has accepted that words can be added to the UK’s working time regulations to give effect to a European court judgment that holiday pay should include commission that is part of normal pay. Confirmation is still required on whether the reference period for workers who regularly get commission should be 12 weeks.   This case was referred to the Court of Justice of the European Union which decided that holiday pay for workers who earn sales…

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Pay and benefits, Termination

Employment Appeal Tribunal - March 2015 This case had to decide whether a genuine redundancy dismissal amounted to age discrimination because its timing avoided significant pension costs. The EAT also had to decide, if this was discrimination, whether it could be justified.   The claimant was dismissed for redundancy a few days before her 55th birthday; if she had been dismissed after that date she would have been entitled to take her pension immediately. She argued that the timing of…

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Pay and benefits

Employment Appeal Tribunal - December 2014 A commission-only worker, who was unable or unwilling to take holiday because of the loss of income associated with doing so, was not able to claim for lost holiday pay but was entitled to claim for the loss of the benefit of taking holiday.   If annual leave cannot be taken because of sickness, it must be granted at some other time, or paid for on termination of employment. This case raises the possibility that the same principle could be…

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Pay and benefits

Employment Appeal Tribunal – November 2014 In a decision in line with previous cases on whether variable pay should be included in holiday pay, the EAT decided in this case that non-guaranteed overtime needs to be included when calculating holiday pay, but a gap of more than three months will break a series of unlawful underpayments of holiday pay.   The principles which the EAT set out in its judgment on three conjoined cases - Bear Scotland v Fulton, Hertel v Woods, and Amec v Law is…

Pay and benefits

High Court - November 2014 In this case, the High Court ruled that a former executive was entitled to over £400,000 in severance pay even though he had received a ‘transaction bonus’ of nearly half a million pounds just a few months earlier. Facts Elliston was Glencore’s company secretary. His contract contained a ‘change of control’ clause which stated that its purpose was to “diminish the inevitable distraction to you” caused by the “personal uncertainties and risk created by … a…

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Terms and conditions , Pay and benefits

Employment Appeal Tribunal - September 2014 In this case, the EAT had to decide whether a contractual term, or an HR officer's assurances, gave an employee the automatic right to a pay increase if her performance was satisfactory.   Earle was the successful applicant for a job which came with a salary range, within which there were a number of incremental steps from the lowest level (where she started) to the top. Her contract stated: “Progression through the salary range will be…

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Terms and conditions , Pay and benefits

High Court - September 2014 An employer which has the responsibility of exercising discretion over bonus payments, even bonuses based on formulas, must do so rationally.   The claimants in this case were equity derivative dealers working for a bank. Their contracts provided for a bonus payment each year, to be calculated as a percentage of the value added to the business as a result the deals generated by the equity derivative arm.   During the first three years of the bonus scheme…

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Pay and benefits

Employment Appeal Tribunal - June 2014 In this case the Employment Appeal Tribunal found that a senior care assistant on sleepover shifts was entitled to receive the national minimum wage for all her night shift hours, regardless of whether or not she was actually working during that time. Facts Slavikovska worked in a residential care home where her role as a senior care assistant involved looking after residents with learning difficulties. She was resident at the care home and…

Pay and benefits

Employment Appeal Tribunal - May 2014 Care worker entitled to minimum wage for sleepover shifts Facts Slavikovska worked in a residential care home where her role as a senior care assistant involved looking after residents with learning difficulties. She was resident at the care home and worked during the day. She also worked a sleepover shift from 9pm until 7am the following morning for which she was paid £25.   Slavikovska’s evidence was that she did a variety of duties during the…