Employment Law Monthly Update September 2017


We are pleased to provide you with the Herrington Carmichael LLP employment law update for September 2017. 

This is a key note summary of some of the main developments in employment law in the last month.

1. Parental Bereavement Leave

The Parental Bereavement (Pay and Leave) Bill was introduced into Parliament on 19th July 2017 to enable employees who have lost a child to obtain statutory paid leave in order to have time to grieve. This Bill has the support of the Government as it was part of the Conservative manifesto. It will be discussed in Parliament over the next few months.

Although under s.57 (A) of the Employment Rights Act 1996, an employee has a right to take a reasonable amount of unpaid leave to deal with an ‘emergency’, there is still no legal requirement in the UK for employers to allow paid leave for grieving parents.  If this Bill goes through, this will introduce this new right. 

2. Suspensions

In Agoreyo v London Borough of Lambeth, the High Court provided some clarification on how to lawfully suspend an employee suspected of wrongdoing.  Mrs A was suspended after having used force to discipline two of her pupils.  The Court confirmed that, in this situation, a suspension is not a neutral act (as it may be cause damage to the employee’s reputation) and therefore the Court stated that her employer should have:

  • spoken to her about what occurred and asked her for her response to the allegations; and
  • considered whether any alternatives to suspension were more appropriate.

The Court considered that her suspension was sufficient to breach the implied duty of mutual trust and confidence, therefore a breach of her contract of employment.  This decision highlights that suspension is not always the correct approach in disciplinary situations.

3. Voluntary Overtime

In Dudley Metropolitan Borough Council v Willetts and others, the Employment Appeals Tribunal (EAT) decided that pay for statutory annual leave under the Working Time Regulations 1998 should be calculated to include voluntary overtime.

In this case, 56 Council workers hired to undertake housing repairs were working overtime on a regular basis in addition to their contractual hours. They issued a claim against the Council for unpaid holiday pay. They contended that their holiday pay should reflect their overtime pay, call-out payments, mileage and standby allowances associated with these additional voluntary duties. The Employment Tribunal (ET) ruled in their favour and the Council appealed to the EAT. The question for the EAT was whether voluntary overtime payments fell within the definition of “normal remuneration” as per art. 7 of the European Working Time Directive. By referring to European and UK court precedents, the EAT upheld the ET’s decision and indicated that “in a case where the pattern of work, though voluntary, extends for a sufficient period of time on a regular and/or recurring basis to justify the description “normal”….. It will be for the fact-finding tribunal to determine whether it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration”.

This decision is an important reminder to employers who have not already done so, to review their current policy regarding their calculation of holiday pay and consider whether voluntary overtime need to be included in the calculation of holiday pay.

4. Religious Belief Discrimination

In Traythorn v The Secretary of State for Justice, Mr T is a Pentecostal Christian minister. He was employed as a gardener at one of her Majesty’s prisons, where he also volunteered in prison chapel services. During his services, he preached that same-sex marriage is wrong. Several complaints were made regarding Mr T. After further complaints were made against him, his employer gave him a final written warning. He subsequently went on sick leave and resigned, arguing that he had been subjected to indirect religious discrimination for being a Pentecostal Christian as he was “likely to quote and/or discuss parts of the Bible which those attending chapel services may find offensive and complain about resulting in the Conduct and Discipline Policy being invoked”.

The ET dismissed his claim on the basis that he had failed to demonstrate that his employer’s policies particularly disadvantaged Christians or Pentecostals as a group or him in particular. The EAT upheld this decision by stating that a Claimant should be able to demonstrate that a group or people sharing his protected characteristic would be disadvantaged compared to those not sharing his protected characteristic.

This Judgment comes without surprise as the Tribunal concluded that Mr T’s employer‘s decision to issue a sanction was a proportionate means of achieving a legitimate aim, which is to maintain security and order to ensure equality of treatment within the prison.

For further information or to discuss the issues raised by this update, please contact Herrington Carmichael’s Employment Department on 0118 977 4045 or employment@herrington-carmichael.com

This publication reflects the law at the date of publication and is written as a general guide only - it is not intended to contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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