Annual leave

Two Judgments have been handed down over the past month which further develop the on-going discussion around annual leave.

In Dudley Metropolitan Borough Council v Willetts [2017] the Employment Appeal Tribunal (EAT) found that employees should have had their voluntary overtime and on-call payments included in the calculation of holiday pay  (limited to the first four weeks of the year under the Working Time Directive only and not the additional 1.8 weeks under the Working Time Regulations). This was decided on the basis that in this case overtime and on-call were worked regularly.   

This is the first EAT level decision we have confirming the position on voluntary overtime. It highlights that the key issue for employers to consider, irrespective of whether staff are obliged to work overtime, is the regularity with which overtime is worked.

In the latest gig economy case, Gascoigne v Addison Lee Ltd [2017], the Employment Tribunal found that a cycle courier working for Addison Lee was a worker and therefore entitled to holiday pay.  This was despite the fact that the contract governing the relationship expressly stated that he was an independent contractor. Even though the employer in this case argued that the individual had the freedom to refuse assignments, the Judge found that in reality he had worked continually and that there was a wage/work bargain. 

The Judgment is a reminder of the uncertainty highlighted in the recent Taylor review, around the status of workers. Even where an individual is classified as self-employed for the purposes of tax and provides his/her own equipment, they may still be considered to be employees or workers for purposes of employment rights legislation. The label the parties attach to a relationship is not decisive and what was critical to the Employment Tribunal’s decision here was the question of whether personal service by the individual was required.  Where an individual must carry out the work personally (rather than being able to provide a substitute), they are likely to be a worker.  

Given the uncertainty and developing case law in this area, it is more important than ever that employers give very careful consideration to the nature of the relationship with staff working under atypical relationships, and contractual documentation governing the relationships should be carefully drafted to reflect the genuine practical arrangements.

Changes to compensation awards

It has been announced that from 11 September 2017 there will be an increase to the bands under which compensation for injury to feelings awards in discrimination and whistle blowing cases are assessed.  

The three bands (which were first identified by the Court of Appeal in the 2003 Vento case) originally started at £500 and went up to a maximum of £25,000. However, case law has since established that these bands need to be uplifted to account for inflation.

The new bands are as follows:

  • Lower - £800 - £8,400
  • Middle - £8,400 - £25,200
  • Higher - £25,200 - £42,000
  • Exceptional – over £42,000

The new limits are a result of a consultation carried out by the Presidents of the Employment Tribunal this Summer.  The announcement of the increases appears to set out a new fourth band, over £42,000, for exceptional cases.  Employment Tribunals have, in fact, always had the ability to award in excess of the upper limit in exceptional cases, but this is made more explicit under the new guidelines.

Privacy in the workplace

In a case involving an employee in Romania, the Grand Chamber (which sits above the European Court of Human Rights) has ruled that an employer that dismissed an employee for using his work email account for sending personal messages had infringed his right to privacy. The employee was entitled to compensation.

In this particular case it was found that it was not sufficient to simply tell employees that work computers should not be used for personal purposes, the employer should also have told employees that their emails would be monitored.

For employers, this is a reminder of the difficult balance between the use of work equipment and the rights of individuals to privacy. It is important to note that it is permissible to monitor employees’ emails, and to take action where email is used inappropriately, provided the employer notifies employees that this will be done. The best way to do that is in a comprehensive workplace policy.

For further information on any of the above matter, please contact Martin Hamilton.