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Cases in Brief

November 2016

Holiday Pay —British Gas Trading Ltd v Lock and another [2016]

On 7 October 2016, the Court of Appeal handed down its highly anticipated judgment in this pivotal holiday pay case. Whilst the Court had “wavered” in its decision, it concurred with the Employment Appeal Tribunal’s judgment that Mr Lock’s holiday pay should also include a representative element of results-based commission. The Court was persuaded by the argument that the Working Time Regulations (WTR) were implemented by the UK government with the aim of giving effect to the Working Time Directive (WTD). So whilst it has only recently become clear that holiday pay under the WTD should include commission and other bonuses, the court found that UK government had intended to fully give effect to the WTD, meaning that this element must be read into the WTR. Given the significant pay-outs this will entail, it is expected that British Gas will appeal to the Supreme Court. As such, we will have to wait and see whether they do so. Also, it is worth noting that the Court of Appeal has left the question of how to calculate this extra remuneration deliberately vague, as demonstrated in the judgment where it was stated that “...Nothing in this judgment is intended to answer” the questions in this respect. Thus, even if British Gas do not appeal we could still see more similar cases in UK courts in the coming months on the basis that there is still considerable ambiguity in this area.

Shared Parental Leave — David Snell v Network Rail [2016]

In a recent Employment Tribunal case, David Snell v Network Rail, Network Rail were held to have failed to properly update their parental leave policy following the introduction of shared parental leave. Mr Snell argued that he was subject to direct and indirect sex discrimination as he did not receive the same enhanced parental leave pay that women received during his part of the shared parental leave. The tribunal found in his favour and awarded him over £28,000, £16,000 for loss of future earnings, £6000 for injury to feelings, a 12% uplift for Network Rail’s failure to follow the ACAS codes of practice, and £2000 in pension loss and interest. Whilst this case holds no real surprises it highlights the necessity for businesses to make sure that their parental leave and shared parental leave policies should be up to date and reflect the necessary changes.

TUPE — CT Plus (Yorkshire) CIC v Stagecoach [2016]

The Employment Appeal Tribunal rejected an appeal against the  Employment Tribunal’s decision that there was no TUPE transfer. Kingston-Upon-Hull City Council developed a park and ride facility on the outskirts of Hull, which initially was run by CT Plus with a subsidy from the Council. The route was open to other operators to run a service. In 2013 the council invited tenders for the service and Stagecoach tendered for it. However, the tendering process became delayed, and Stagecoach decided that it could run its own service commercially without the subsidy. The Council gave notice to CT Plus that it was terminating its contract. CT Plus argued that it was a TUPE transfer and Stagecoach disagreed. The ET sided with Stagecoach and said there was no TUPE transfer as nothing had transferred, neither employees nor equipment. The ET held that there must be a continuous client for there to be a TUPE service provision change and there was not, as the Council had nothing to do with the Stagecoach service.

Breast Feeding and Discrimination — McFarlane v EasyJet Airline Company Ltd [2016]

In this case the Tribunal was examining whether EasyJet not allowing flexible working arrangements amounted to indirect sex discrimination, a failure to offer suitable alternative work, and a failure to pay remuneration for suspension. The two claimants had requested flexible working arrangements where they would not be made to work anything longer than an 8 hour shift at a time. This was to manage the length of time between opportunities to express breast milk. The claimants had doctors notes supporting their request for these arrangements as their GPs said that they had increased risk of mastitis if these arrangements were not allowed. But EasyJet rejected their requests as they did not allow bespoke roster arrangements for any of their staff under their rostering system so that it could deliver its flying schedule, avoiding delays and cancellations for passengers. The Tribunal found in favour of the claimants as they were put in a position where they either had to work the normal roster or keep breastfeeding and suffer a pecuniary loss. The Tribunal awarded £8,750 and £12, 500, plus interest, to the claimants for financial loss and injury to feelings. This case highlights the importance of steps that employers need to make in order to accommodate mothers in the workplace, including allowances in rostering for breastfeeding.

 

Vanessa Bell

Senior Associate

e vbell@prettys.co.uk

t 01473 298208

 

 

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