Employment Law Bulletin – October 2022

Welcome to your quarterly employment law bulletin from Roots HR. 

This quarter we update you on… 

Brexit and employment law

Last month saw the tabling in the House of Commons of the EU Law (Revocation and Reform) Bill. If brought into force, the Bill provides that all EU derived legislation will fall away unless it is specifically retained by a certain date (December 2023, with the option to extend until December 2026). That means that employment law staples, including TUPE, part-time/fixed-term worker regulations and holiday pay rules may disappear. The government will decide which laws it wants to retain. There is no indication yet of what’s likely to be in and out.  

Holiday Pay

Employees are entitled to 5.6 weeks’ holiday under the Working Time Regulations 1998 (WTR). Calculating the holiday pay of someone with no normal working hours can be tricky. Some employers have adopted a percentage approach, by assuming that holiday accrues at a rate of 12.07% of hours worked. This is based on the following calculation: 52 weeks – 5.6 weeks’ holiday = 46.4 weeks; and 5.6 weeks is 12.07% of 46.4 weeks. The Supreme Court has looked recently at whether this is the right thing to do and what happens when an employee is both part time and only works at certain times of the year, for example on a term time only basis.  

In Harpur v Brazel Trust, the employee was a visiting music teacher. She had a zero hours contract and her hours varied. She worked only during the school term which varied from 32 to 35 weeks. She was entitled to 5.6 weeks’ annual leave which she had to take during school holidays. No particular weeks were identified as being her holiday weeks, and she was paid in three chunks at the end of each term. The employer used the 12.07% method to calculate her holiday pay. The employee disagreed with how her holiday pay was calculated and brought a claim for unlawful deduction from wages and part time worker discrimination. Instead of the 12.07% method, the employee said the employer should have used the method contained in the WTR which involves calculating average pay over the previous 12 (now 52) weeks. 

The Supreme Court confirmed that part-year workers, such as term time only workers, do not have their holiday entitlement pro-rated down from 5.6 weeks just because they don’t work all the weeks in the year. 

The percentage method for calculating holiday pay has now been roundly rejected by the Supreme Court so employers should no longer use it. Holiday pay is calculated according to the WTR method, now an average over 52 weeks. Holiday entitlement accrues on the basis of the passage of time, not how much work is done. That means that there is a rather incongruous situation where weeks that are not worked (here, the school holidays) count for the purposes of accrual of holiday but are disregarded for any holiday pay calculation because the employee receives no pay.  

Unfair dismissal

Can continued lateness justify dismissal? The EAT in Tijani v The House of Commons Commission  held that it could. The employee had been a cleaner at the House of Commons since June 2015. She was given a first written warning in December 2017 for being late 17 out of 20 days. She got a final written warning, to stay in place for 24 months, for continued lateness in April 2018. The employee didn’t appeal and was told that further absence could result in dismissal. She was still frequently between 2 and 33 minutes late – 43 more times by January 2019 and 7 additional late arrivals before the formal process began. The employee was dismissed. She appealed, but the appeals officer said her record showed no significant improvement even discounting the times when she was late by only a couple of minutes. The appeal failed.  

She brought a claim for unfair dismissal and lost. She appealed to the EAT, saying that the tribunal had not seen a copy of the employer’s disciplinary policy during the original hearing and therefore could not measure the nature or extent of the misconduct or the appropriate range of sanctions. She also said that the tribunal’s conclusion that poor timekeeping was generally a misconduct issue was not well informed and speculative. She said the tribunal had not properly considered her arguments about inconsistent treatment compared to other employees who had not been dismissed for their lateness. 

The EAT disagreed. With regard to inconsistent treatment, the tribunal asked the employee to name a colleague with a similar record of lateness who had not been dismissed – but the employee had not provided any names. The tribunal had seen evidence that six other cleaners had not been dismissed because their attendance had improved, evidence that the employee had not challenged. The tribunal was entitled to conclude that lateness was a conduct issue. Despite the unfortunate absence of the disciplinary policy during the tribunal process, the tribunal was entitled to find that the dismissal was fair given the sheer number of absences, the final written warning and the employee’s knowledge that further lateness could result in her dismissal. The employer did not need to show any ‘damage’ to the business as a result of the lateness – the lateness itself was enough. The EAT agreed that employees should not only show up on time but also be ready to start work on time. 

This case highlights the importance of two things in conduct proceedings: following a fair procedure (warnings, appeals etc) and treating employees consistently. In this case, the employer not only got this right but had the evidence to show it. The absence of the disciplinary policy in evidence was irrelevant here. However, having a clear policy on lateness, and the potential sanctions for continued lateness, ensures employees understand not only the rules, but the potential consequences if they don’t stick to them. 

Acas guidance on suspension

Acas has published new guidance for employers on using the right to suspend as part of a disciplinary process. Suspension is often touted as a neutral act – to maintain the status quo during an investigation and protect evidence, witnesses, and the business. However, it can feel anything but neutral to the suspended employee who may be entirely innocent of the allegations raised against them. 

This new Acas guidance is a really helpful aide-memoire for employers to use alongside their own policies and/or to incorporate into them. Its guidelines ensure that employers carefully consider the reasons for suspension in advance of making a decision, ensuring that suspension is appropriate and justified in each case. The guidance offers helpful alternatives to suspension, such as moving an employee (either in terms of shift or site) and working away from certain customers or specific work/tasks (i.e. working away from stock if the allegation is one relating to stock going missing). Of particular importance is the message to the suspended employee that suspension is not an indication of guilt. Employers are advised to ensure that suspended employees are properly supported, that contact is maintained and suspensions are kept as short as possible. There’s a whole section on how to support employees’ mental health through a period of suspension which employers can draw on to improve their own practices. 

Read the guidance here: https://www.acas.org.uk/suspension-during-an-investigation 

And finally…

Bill Shankly, the first great manager of Liverpool FC, is quoted as saying: ‘Some people believe football is a matter of life and death, I am very disappointed with that attitude. I can assure you it is much, much more important than that.’ Anyone with a season ticket, or who is related to someone with a season ticket, will appreciate that sentiment. Football fandom can seem like a pretty strong and forceful belief when viewed from the outside, especially on match days. But is supporting a football team a philosophical belief, on a par with other religious and philosophical beliefs, which attracts protection from discrimination under the Equality Act 2010? Not according to the employment tribunal at a preliminary hearing in McClung v Doosan Babcock 

The employee had been a Rangers fan for 42 years. He was a club member and received annual birthday cards. He attended home matches at least twice a month and away games when he could. He spent a large proportion of his disposable income on going to matches or watching them on Sky Sports. He believed his support of Rangers was a way of life and as important to him as attending church is for religious people. He said it was a philosophical belief, a protected characteristic under the Equality Act. 

The employment tribunal did not agree. Although his belief was genuinely held, it did not meet the other essential criteria for a protected belief set down in the case of Grainger v Nicholson. Support for a football club – an active interest in it and a desire for them to win – is different from a belief. The tribunal said the employee’s support for Rangers was like supporting a political party which case law has confirmed is not capable of being a protected philosophical belief. Being a football fan is a lifestyle choice, not a belief about a weighty or substantial aspect of human life. The employee’s belief lacked the required cogency, cohesion and importance. It didn’t warrant the same respect in a democratic society as matters such as ethical veganism. 

This might be disappointing for football fans but is unsurprising bearing in mind the previous case law on the kinds of belief that can and cannot be protected. It might stop a potential discrimination claim in its tracks for Mr McClung, but it won’t stop him celebrating his belief in Rangers in the stands on a Saturday afternoon.