Margery McBain from Gravitate HR was joined by Marianne McJannett, Head of Employment at Bellwether Green to discuss some recent updates to Employment Law as well as key considerations for employers. Three key topics were covered, all stemming from recent case law examples, including: changes to holiday pay, long-covid and banter in the workplace.

Holiday Pay

As many will be aware, the recent case of Harpur Trust v Brazel has led to significant changes in how holiday pay is calculated for those on permanent part-year contracts. In this case, the claimant was Ms Brazel who was a music teacher with Bedford Girls School operated by the Harpur Trust. As a “part-year” worker, she remained employed from year to year, but was contractually only required to work at certain periods during each year. Under her original terms she was provided with 5.6 weeks paid holiday each year, however, the Harpur Trust decided to reduce this to reflect the weeks actually worked (pro-rated amount). Her holiday pay was therefore calculated by using the common ‘percentage method’ (as recommended by ACAS at the time) and her total holiday entitlement, as well as holiday pay, was directly based on how many hours she had worked in the proceeding 12 weeks. 

Subsequently Ms Brazel raised a claim for underpayment of wages, that being her holiday pay entitlement for a period of 5 years – under the Working Time Regulations, Ms Brazel was paid 17.5% of her earnings as opposed to the 12.07% using the ‘percentage method’. Her claim was upheld by both the Employment Appeal Tribunal and Court of Appeal. 

What are the key takeaways from this?

  • This decision will impact both part-year employees and those on irregular work contracts as many employers used the 12.07% method;
  • Holiday pay for “part-year” workers should now be calculated based on the previous 52 weeks;
  • Employers should look at how they have been calculating holiday pay so far (the formula they are using) and take steps to amend this going forward;
  • Employers may need to look at those who have potentially been underpaid as a result of this change and back-pay them;
  • Reconsider or review the use of permanent contracts;
  • Ensure your outsourced payroll (if applicable) have actioned this correctly as it is the employer’s liability;
  • Look at managing the potential fallout from those working the full year who may feel it is unfair; and
  • If you are stuck, reach out to payroll, an employment lawyer, or your HR consultants for advice.

Long Covid

The Office of National Statistics (July 2022) continues to highlight the huge impact the symptoms of long-covid are having on employees and subsequently their employers.

A recent Scottish case highlighting this was that of Burke v Turning Point Scotland. Mr Burke originally tested positive for Covid-19 in November 2020 and subsequently developed extreme fatigue, severe headaches, had difficulty sleeping and was unable to undertake everyday household tasks. Whilst his fit notes made mention of the fact that he was suffering from the effects of long covid, an Occupational Health Report stated he was fit to work, and it was unlikely the Equality Act could be applied to his absence. He was later dismissed in August of 2021 and claimed disability discrimination with the Employment Tribunal upholding his claim as they agreed Mr Burke had a physical impairment. The Equality Act, Section 6 states: ‘You’re disabled if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities’.

This case highlights some of the difficulties employers may face when dealing with long covid.

What can we do?

  • Reflect on what you are currently doing and if you have employees struggling with symptoms of long covid then ensure you actively manage this by supporting them, consider all avenues and ensure overall employee wellness within your Organisation;
  • Deal with long covid in the same way as any other long term medical absence;
  • Employers should not take a blanket approach and instead should treat each instance on a case-by-case basis;
  • Be mindful of the fact that OH only provide a snippet so it is important to take into account what each fit note states; and
  • Balance the needs of both the organisation and the individual – whilst employers are not required to retain someone on long term sickness, they must ensure that the necessary absence management processes are undertaken, that they consider what reasonable adjustments they could make and ensure individuals are not being directly or indirectly discriminated against.

Banter in the Workplace

Whilst banter in the workplace is often commonplace, when it goes wrong it can result in claims of harassment and discrimination. 

In Robson v Clarke’s Mechanical Limited, Mr Robson referred to at work by colleagues and his Manager as ‘Half Dead Dave’ was pulled into a meeting, without warning and was told he was being made redundant. Mr Robson attended an appeal meeting in which he claimed it was discrimination because of his age and the fact that he was the oldest plumber in the company. Whilst there was no direct evidence that the reason for his redundancy was based on his age, Mechanical Clarke could not provide any evidence that Mr Robson hadn’t been selected for redundancy because of this.

What are the key learnings?

  • Ensure you have a strong selection criterion if you are going down a Redundancy Process;
  • Follow the Redundancy process to the letter – including giving warning that an employee may be at risk of redundancy and carrying out consultations;
  • Approach banter as a serious issue in the workplace – an Employment Tribunal wouldn’t look at why someone made a remark but instead the impact it had on the person;
  • Look at what is being said in the workplace and how someone may be internalising this i.e., making fun of someone’s looks, age or sexuality; and
  • Ensure your culture is reflected in your business model.

You can catch up on the webinar via our website and if you would like a further conversation to see how we can help, please contact either Marianne at Bellwether Green, marianne.mcjannett@bellwethergreen.com or Margery at Gravitate HR, margery@gravitatehr.co.uk