Employment case law update | Summer 2021

Published: 14th July 2021
Area: Corporate & Commercial
Here we take a quick look at some key employment case law decisions from recent months.
Overtime and holiday pay  

Many people were hoping that the Supreme Court decision in East of England Ambulance Trust v Flowers and others would bring clarity to whether the calculation of holiday pay under the Working Time Directive should include an element for regularly-worked voluntary overtime. However, clarity on this issue now seems unlikely, at least in the short term.

For most employees who are paid a regular salary, their pay will remain the same when taking annual leave. However, for employees whose earnings vary significantly due to overtime, on-call pay, or bonuses, the situation becomes more complex. Employers must be able to calculate the employee’s normal rate of pay, so that the employee can be correctly paid a normal daily rate during any periods of annual leave.

In this case, there was a dispute between the East of England Ambulance Trust (the ambulance service) and Mr Flowers and other ambulance service staff. The ambulance service did not include overtime in the claimants' holiday pay calculation, resulting in claims being brought for breach of contract and breach of the Working Time Directive.

The matter was due to be heard by the Supreme Court on 22 June but was removed from the court listing before this date. We understand that the case has been settled following an NHS-wide deal on holiday pay (effective in England only) which takes into account the inclusion of regularly worked overtime and additional standard hours.

This will come as a disappointment to some who were hoping for guidance from the Supreme Court on the correct approach to take.

Indirect discrimination and changing working arrangements

Managing work and childcare can be a challenge at the best of times, but with the added complications of school closures and rules on self-isolation, this has been particularly difficult for many parents during the pandemic. For this reason, many employers afforded staff greater flexibility in their working arrangements than had previously been the case. However, with the end of restrictions seemingly in sight, many employers will now be considering how the workplace will look going forward and will be seeking to formalise arrangements and regain some certainty and structure.

The Employment Appeal Tribunal (EAT) has recently decided two cases in favour of working mothers which are a useful reminder that employers should exercise caution if seeking to change or impose new working arrangements.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the Employment Appeal Tribunal held that the Employment Tribunal had erred in failing to take judicial notice of the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities

This case involved community nurses. They were initially employed to work fixed days, but this was changed and they became required to work flexibly, including on weekends. The claimant was unable to comply with the flexible working requirements as she cared for her three children, two of whom have disabilities. This led to the claimant’s dismissal. She brought a claim for unfair dismissal and indirect sex discrimination.

The claimant lost her case in the first instance, but succeeded on appeal, arguing that the tribunal had not taken into account the so-called “childcare disparity”. This refers to the fact that, in general, women bear a greater burden of childcare, and are subsequently less likely to be able to comply with a requirement for flexible working. The “childcare disparity” is well documented in the case law of the tribunal, although there is no statutory rule that compels tribunals to consider it in judgments.

The case is perhaps not as ground-breaking as some reports in the press suggested, but is more of a reminder of the correct approach. It is interesting that the EAT did not find that the childcare disparity always means a requirement to work flexibly will put women at a disadvantage compared to men. As the EAT noted, a blanket approach could give rise to unfairness and illogical outcomes because some flexible working arrangements are favourable to those with childcare responsibilities.

Hughes v Progressive Support Limited

In Hughes v Progressive Support Limited, the Employment Appeal Tribunal (EAT) considered whether it can be indirect discrimination if an employer requires an employee to go to work regardless of childcare needs, even if the employer does not actually penalise the employee for non-compliance.

The claimant was a support worker with a contract of employment that guaranteed minimum hours of work. She was also a parent with childcare responsibilities and worked on a considerate hours policy to allow her to manage work and her childcare responsibilities. However, this policy was subsequently removed and the claimant was asked to work hours that suited the business. This could include any hours, as the business involved caring for individuals that needed care 24/7. The claimant was unable to do this and therefore worked fewer hours. The employer did not treat her inability to work the prescribed hours as a disciplinary matter, but did threaten to move her to a zero hours contract.

Although the claimant was later moved back to the considerate hours policy, she brought a claim for the period in which this was not in place. The EAT found that she was subject to a discriminatory provision, criteria or practice (PCP) that required her to work hours that were impossible because of her childcare responsibilities. It did not matter that she had not been punished for failing to work the hours required by the PCP. The claimant had lost out by virtue of working fewer hours than she would have done but for the PCP and had suffered the threat of losing out on guaranteed hours with the prospect of a zero hours contract.

Forstater v CGD Europe & Ors

In Forstater v CGD Europe & Ors, the Employment Appeal Tribunal overturned a decision and judged that a “gender critical belief” could amount to a philosophical belief and therefore attract the protection of the Equality Act 2010.

The judgment featured prominently in news media, and centred around Maya Forstater’s claim for unfair dismissal and discrimination based on her “gender critical beliefs”. The beliefs in question dealt with gender and biological sex, with Ms Forstater stating that she rejected the idea that “trans men are men” or “trans women are women” and that people were unable to change their biological sex. After tweeting statements professing her gender critical beliefs, her employer had ended her employment by not renewing her contract. A claim for discrimination and unfair dismissal followed, with Ms Forstater losing in the first instance as the tribunal decided her views were “not worthy of respect in a democratic society”.

However, the claimant succeeded before the Employment Appeal Tribunal (EAT), with the decision remitted to the tribunal to hear once more.

The judgment of the EAT dealt primarily with the limits to the legal restrictions on freedom of speech, and the very high threshold for which they would state a particular belief was not worthy of respect. Ultimately it was judged that Ms Forstater’s view did not amount to an attempt to direct harm to others (some organisations dispute this aspect of the judgment). The views were also judged to not amount to “Nazism or totalitarian” which would have avoided any protection in law.

The EAT’s judgment also took account of the fact that in English and Welsh law, gender is still depicted as only binary male or female with very little acknowledgement of anything in-between such as intersex or people who identify as non-binary. The judgment also considered that Ms Forstater’s beliefs were not unique to her, and acknowledged that this area was subject to significant public debate.

Lastly, the judgment was clear in pointing out that their decision was not intended to express an opinion on the ‘gender critical beliefs’, and that transgender people were still protected by law under the Equality Act. Employers should continue to support transgender workers and protect them against discrimination and harassment just as they would protect people with any other protected characteristic.

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