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HRizon September 2020 hilldickinson.com
In the Court of Appeal: In the Employment Appeal Tribunal
The ‘waspi’ challenge to the increased state pension (EAT):
age for women has been rejected: The State Pension
Can mutual agreement that employee will withdraw
Age (SPA) for women increased gradually from age 60
a resignation be implied by conduct of the parties?
to 65 between 2010 and 2018. A group of campaigners
The general principle is that, once notice of termination
(often referred to as the ‘waspi’ women) brought claims
has been given by either party, it cannot be unilaterally
challenging this increase on the basis that the change gave
withdrawn. Therefore, there must be mutual agreement
rise to unlawful discrimination either directly (based on
if the employment is to continue. The EAT has recently
age) or indirectly (based on gender) or both. In addition,
considered whether it was possible to imply from the
they claimed that the government was under an obligation
conduct of an employer and employee that there was a
to notify affected women of the changes to their pension
mutual agreement for the employment to continue after an
age. The High Court refused to grant a judicial review and
employee’s resignation. B’s role included line-management
the campaigners appealed. The Court of Appeal dismissed
responsibilities, and there was ongoing difficulties in
their appeal. On the issue of age or gender discrimination
the relationship between B and her subordinate. After
caused by the legislation equalising, and then raising, the
reflecting on an unsuccessful meeting, which had been
SPA, the Court held that there was no sufficient causal
aimed at improving the working relationship, B gave three
link between the withdrawal of the state pension from
months’ notice of her resignation. A senior manager asked
women in the age group 60 to 65 and the disadvantage
B to reconsider her resignation and stay. B confirmed
caused to that group. The same reasoning applied to the
that she would only do so if the abuse she was receiving
increase from 65 to 66 for both genders. On the issue
from her subordinate was dealt with. B continued to work
of the government’s obligation to provide notice to the
throughout her notice period and beyond her expected
affected women, the Court held that there was no duty to
termination date. About 2.5 weeks after B’s anticipated
notify those affected by the change in the SPA. The Court
termination date, a new HR manager reviewed the records
concluded that there has been adequate and reasonable
and concluded that B had resigned on notice. This did not
notification given by the publicity campaigns implemented
match B’s recollection of what had been agreed after her
by the relevant government department over a number
apparent resignation, so B brought a constructive dismissal
of years. (R (Delve and another) -v- Secretary of State for
claim. B’s claim was dismissed by the employment
Work and Pensions [2020] EWCA Civ 1199)
tribunal on the basis that B had voluntarily resigned.
EMPLOYMENT
Upholding B’s appeal, the EAT held that the tribunal
had failed to properly consider what was said between
B and others following her resignation. The tribunal had
not given sufficient weight to the council’s request for
B to stay, which had led to B working (and being paid)
for almost three weeks beyond what should have been
the termination date. Given this factual background, the
tribunal should have considered the possibility of an
implied agreement between B and the employer, at the
Welcome to our September HRizon employment employer’s request, that B would withdraw her notice.
Although express words are preferable, it is possible for
newsletter, in which we look at the new job support the withdrawal of a resignation to be implied by the parties
conduct, and the agreement to withdraw the resignation
scheme which will replace furlough leave, consider can be initiated by either party. (Butcher -v- Surrey County
Council [2019] UKEAT 0022_19_2009)
frequently asked questions from employers regarding
coronavirus, holiday carry-over for coronavirus-
related reasons, and highlight recent employment law
cases and HR news from the last month.
hilldickinson.com
Was teacher unfairly dismissed after criminal charges of
possessing indecent images of children were dropped?
In the employment tribunal (ET): Does gender reassignment include gender fluid and
non-binary individuals? Gender reassignment, which is a
bonuses. The ET upheld ABM’s claim, the ELI given by P was
inadequate in relation to the pay and bonuses. However,
The EAT has recently considered whether the dismissal of Covert recording leads to interim relief order in first protected characteristic for the purposes of equality law, the tribunal declined to award ABM £500 per employee
a teacher, after the prosecution dropped criminal charges coronavirus-related tribunal claim: Where an employee is defined as a process for the purpose of reassigning the compensation, because it did not consider it just and
of possessing indecent images of children, was fair. A is claiming unfair dismissal for certain unlawful reasons, person’s sex by changing physiological or other attributes equitable to do so. Most of the loss claimed by ABM arose
schoolteacher, with more than 20 years’ experience, was they can make an application for interim relief. To succeed, of sex, from the point at which they propose to undergo from its own decisions to enter into settlements with the
charged with possession of indecent images of children. they must prove that it is likely that they will establish at the process. An ET has recently considered whether the staff, rather than being caused by the inadequate ELI. The
The police searched his property under warrant, due to a full hearing that the unlawful reason was the principal meaning of ‘gender reassignment’ includes individuals ET instead awarded ABM with £1,080 compensation. (ABM
intelligence that indecent images of a child(ren) had been reason for dismissal. In what is thought to be the first who are gender fluid (i.e. those whose gender identity Facilities Services UK Ltd -v- Proway Window Cleaning
downloaded to an IP address associated with him. The reported coronavirus-related employment tribunal claim, changes from time to time) and/or non-binary (i.e. those Company Ltd)
prosecutor reviewed the evidence and decided not to an ET has granted an employee’s application for interim whose gender identity doesn’t fall neatly into either male
relief. M worked for a fruits and vegetable wholesaler. In Note: ET-level decisions are merely of persuasive value,
prosecute because of uncertainty as to precisely who had or female), and concluded that it does. T, an engineer for
spring 2020, because of the coronavirus pandemic, the and are not binding upon future ETs, but can provide a
downloaded the images (he lived with his son who had a car manufacturer, began to identify as gender fluid/non-
employer proposed that all staff members take a 25% pay useful indicator of how certain issues are currently being
access to the IP address). The employer dismissed the binary and usually dressed in female clothing. T, who was
cut and one week’s unpaid leave each month. M’s trade deal with in the ET.
employee and an ET held that he had been fairly dismissed subjected to insults and abusive jokes at work and had
by the school. The EAT upheld his appeal and held that union rep lodged a grievance complaining about the wage difficulties arising from the use of toilet facilities, brought
the disciplinary charges that the school informed the reduction and that the health and safety of staff was being harassment, direct discrimination and victimisation
employee he faced, were based on misconduct and did endangered by a lack of adequate PPE. A few days later, claims based on the protected characteristic of gender
not mention potential reputational damage to the school a staff meeting took place to which M was not invited. reassignment. The employer argued that gender fluid/
as a potential ground of dismissal. This meant that the This was covertly recorded by M’s colleague. Comments non-binary individuals did not fall within the definition
employer had to make a decision solely based on whether were made by managers during the meeting that “one of gender reassignment. The ET considered Hansard
In the news:
the misconduct had been established. Had it done so, it particular person in the firm has decided to go to a union” (written records of comments made during the relevant
should have concluded that misconduct had not been and “I will not be dictated to by a union”. In July 2020, M parliamentary debates). These included comments from
established, because the employer could not dismiss was dismissed and brought proceedings for automatic the then solicitor-general referring to a gender spectrum
the employee simply on the basis that misconduct was unfair dismissal because of his trade union membership and acknowledging that gender reassignment ‘concerns a
a possibility that could not be excluded. (K -v- L [2020] and/or activities, and because he had made protected personal journey and moving a gender identity away from New DWP guidance on diverse recruitment: The
UKEAT 0014_18_2404) disclosures related to health and safety. M’s application birth sex’. In an oral judgment, the ET held that T fell within DWP has published guidance for employers on how
for interim relief was granted by the employment tribunal. the definition of gender reassignment and went on to to attract, recruit and retain people from a variety of
Crown Court: The tribunal was satisfied, in light of the comments made uphold T’s claims of harassment, direct discrimination and backgrounds. The guidance:
in the covertly recorded meeting, and the dismissal of the victimisation. (Taylor -v- Jaguar Land Rover)
Former MP sentenced to two years’ imprisonment for • Discusses the benefits of employing people with
employee who made the recording, that it was likely that
sexual assaults on two female employees: Southwark Did a transferor fail to provide a transferee with adequate existing work experience who have taken extended
M would be able to show that he was dismissed because
Crown Court has sentenced a former Conservative MP, pre-transfer employee liability information? Under TUPE, career breaks
he had sought the assistance of a trade union to bring
Charles Elphicke, to two years’ imprisonment for workplace the transferor is under a duty to provide the transferee
a grievance. The tribunal made an interim relief order • Provides advice on possible flexible working
sexual assaults on two female employees (a nanny and with employee liability information (ELI), to help them
requiring M’s reinstatement. The fairness of M’s dismissal arrangements
his Westminster assistant). These involved attempts to understand their rights, duties and obligations in relation to
will be determined at a later date. (Morales -v- Premier
kiss both women and fondle their breasts, and running his the employees who are transferring. If the transferor fails to • Discusses the benefits of retaining, retraining and
Fruits (Covent Garden) Ltd [2020] ET/230294520)
hand up the knee of one of them towards her groin area comply, or supplies inadequate ELI, an employment tribunal recruiting older workers
while they were driving in his car. He had also harassed can make a compensation order (based on a minimum of • Encourages employers to think differently about
both women into having sexual relations with him. During £500 per employee, unless the tribunal does not consider employing disabled workers, ex-offenders, those in
sentencing, the judge described Elphicke as ‘a sexual it just and equitable to award that sum). An ET has recently recovery, and those who are homeless
predator’ and noted that he had picked on his young considered a claim regarding inadequate ELI information.
employees because he had influence over them and their A facilities management company, ABM, had outsourced HSE issues guidance on lone workers: The Health and
careers, and because they were unlikely to complain. window cleaning services to a contractor, P. ABM gave P Safety Executive (HSE) has issued updated guidance
Bearing in mind the gross breach of his position of power three months’ notice to terminate the contract and intended for employers on managing the risks of those who
and abuse of his employees’ trust, the judge held that to bring the work back in-house. The parties accepted that work alone without close or direct supervision (which
two-year custodial sentence was the only appropriate this was a service provision change transfer involving the will include many workers working remotely due to
punishment. While the judge’s sentencing remarks are transfer of four staff (two supervisors and two window coronavirus).
fact-specific, and do not set a precedent, they indicate the cleaners). P provided ABM with incomplete and late ELI New DHSC guidance for employers on COVID-19
seriousness with which the courts are likely to view similar information – in particular in respect of the pay and bonuses testing: The Department of Health and Social Care
sexual offending in a workplace context. It also offers a of the transferring staff. ABM brought a claim in relation (DHSC) has provided guidance for employers and
reminder that making sexual advances towards colleagues to the inadequate ELI, arguing that it had been forced to third-party healthcare providers on coronavirus
or subordinates can, in some circumstances, result in a enter into settlements with the four transferred staff, after (COVID-19) testing.
criminal conviction. it had discovered the full information about their pay and
New Job Support Coronavirus:
scheme will replace FAQs for employers
furlough leave The prime minister, Boris
Johnson, in a public address
to the nation on 23 September
Which employees should
work from home?
The current guidance is that the
Should workers who
are more vulnerable to
coronavirus work from
2020, imposed tighter following individuals should work home, or shield?
restrictions in England aimed from home over the winter:
The Public Health England report
Chancellor Rishi Sunak, on 24 September 2020, announced that the existing furlough leave scheme at controlling the spread of • Office workers who can work Disparities in the risk and outcomes of
will be replaced on 01 November by a new Job Support scheme to aid businesses during another six COVID-19 (coronavirus). The effectively from home COVID-19 shows that some groups of
months of tighter coronavirus restrictions. The scheme will last for six months until 30th April 2021. new restrictions include a return • Any worker who can carry out people may be at more risk of being
Employees must work at least 33% of their usual hours to be eligible for the scheme, with the cost of to the ‘work from home if you their normal duties from home (as infected and/or an adverse outcome
those working hours being met in full by the employer. The employee would then be paid two-thirds can’ guidance. judged by agreement between the if infected. The higher-risk groups
include those who:
of any hours when they are laid off, with the cost of the non-working hours being met in equal shares In this article, we consider
employer and the worker)
between the employer and HMRC. Provided the workplace has taken • Are older males
some of the questions our
measures to make it COVID-19 secure, • Have a high body mass index (BMI)
So, for example, if an employee works Sadly, the scheme’s requirement that • The job support scheme employment team has been
the following individuals should carry
33% of their usual hours in November, the employee must work at least contribution will be capped at most frequently asked in on attending their workplace as usual:
• Have health conditions which makes
they will be paid 77% of their normal 33% of their usual hours, means it £697.92 a month connection with the coronavirus them vulnerable to coronavirus (e.g.
wage, with the employer paying the is unlikely to save jobs in the worst • Public sector employees working diabetes, heart disease)
• The Treasury’s expectation is that pandemic in recent weeks. in essential services, including
first 55% and the government making affected industries, which currently • Are from some black, Asian
employers will not be permitted
up the remaining 22%. have little opportunity to generate
to top up their employees’ wages
Please note: The article is based education settings
or minority ethnicity (BAME)
The new Job Support scheme
income.
above the two-thirds contribution on the national restrictions • Anyone else who cannot work backgrounds
aims to avoid a tsunami wave of Employers wishing to take to hours not worked at their own applicable to England. from home (e.g. those whose work
There is a growing body of evidence
redundancies, expected to occur advantage of the scheme will, in expense Employers in Scotland, Wales requires them to be physically
confirming that ethnicity can be a
when the existing coronavirus most circumstances, need to seek present in the workplace)
• Large businesses (probably or Northern Ireland should major risk factor for coronavirus, with
job retention scheme (furlough agreement of the employees to
those with 250+ employees) will check their local restrictions, BAME individuals facing a statistically
leave) ends on 31 October 2020. make temporary changes to the significant increased risk of death
An estimated three million people employment contract.
have to demonstrate that their which differ in some respects.
turnover is lower now than before from coronavirus.
remain on the furlough scheme Some areas of the UK are also
A Treasury factsheet has been the pandemic (meet a financial
and, in the absence of additional
published which confirms: assessment test) and the Treasury’s
subject to additional localised Despite those risks, there is currently
financial support, at least a million measures. no need to shield, as the requirement
expectation is that they will not be to do so was withdrawn in the
redundancies were expected at that • The employer does not need to
making capital distributions whilst summer. We may yet see a return to
point. have claimed under the coronavirus
accessing the grant shielding later in the year if the spread
job retention scheme (CJRS) to
claim under the job support scheme of coronavirus is not kept under
control.
• The employee must work at least
33% of their usual hours (but this
may increase from 1 February 2021) continues on page 8 >>>
continued from page 7 >>> Employers should also ensure that likely the employee will be eligible to Do we need to pay sick pay Unpaid dependant care leave will Is an employee who has
any pregnant worker has an up- take unpaid dependant care leave. usually only allow an employee
to-date risk assessment. In some This allows an employee to take a
to a worker who has had to to take a few days off to arrange
to self-isolate after travel
circumstances, there may be a duty reasonable amount of unpaid leave stay at home because their alternative care for their dependant, entitled to sick pay?
The current guidance on social
distancing confirms that in deciding
to suspend a pregnant worker on full to take necessary action when a child’s school asks them to but the amount of time off which There is no entitlement to statutory
pay if the risks she faces cannot be dependant falls ill or dies. However, self-isolate because of a may be considered ‘reasonable’ sick pay (SSP) if an employee needs
whether vulnerable individuals should
controlled, and she cannot be offered some contracts allow the employee: will depend on the facts specific to self-isolate for 14 days post-travel to
attend work:
alternative duties. (a) paid dependent care leave; or (b)
positive coronavirus test in to the individual (e.g. the lack of a non-exempt destination. For further
• Extra consideration should be given to take their own contractual sick pay their ‘school bubble’? alternative care provision) and we details on this requirement, please see
to those people at a higher risk from Do we need to pay sick pay when a dependant falls ill. anticipate employment tribunals being our article.
There is no entitlement to statutory
coronavirus to a worker who has had Unpaid dependant care leave will sick pay (SSP) if an employee is
sympathetic in these circumstances.
The employee will only become
• Those classed as clinically extremely to stay at home because a usually only allow an employee unable to work because their child
Employees who take emergency time
entitled to SSP if they themselves, or
vulnerable should carry on working off to care for their dependants are
dependant has coronavirus? to take a few days off to arrange has been asked by the school to self-
granted additional protection from someone in their household, begins to
from home wherever possible, alternative care for their dependant, isolate as a precautionary measure display symptoms and they need to
but can go to work as long as the This is likely to depend on whether being subjected to a detriment, and
but the amount of time off which because of a positive coronavirus self-isolate under the current guidance
workplace is COVID-19 secure the dependant lives in the same any dismissal motivated by their need
may be considered ‘reasonable’ test in their ‘school bubble’. The on household self-isolation.
household as the worker, or has been to take dependant care leave would
In many cases, staff who are extremely will depend on the facts specific employee will only become entitled to
in close personal contact with them. be automatically unfair. If you have any further questions
vulnerable to coronavirus will also be to the individual (e.g. the lack of SSP if they themselves, or someone
alternative care provision) and we in their household, begins to display Employees with one year’s continuous about the above, please contact your
considered disabled for the purposes Statutory sick pay (SSP) rules have
anticipate employment tribunals being symptoms and they need to self- service may also apply for a period of usual Hill Dickinson contact.
of equality law. If they are disabled, been amended to cover people who
then the employer has a legal duty are self-isolating because someone sympathetic in these circumstances. isolate under the current guidance on unpaid parental leave. This is available
to make reasonable adjustments. who lives in the same household has Employees who take emergency time household self-isolation. for the purpose of caring for a child
This may involve changing the way coronavirus symptoms. The current off to care for their dependants are under 18, and parents can apply
However, it is likely that this would
things are done (such as policies/ guidance on household self-isolation granted additional protection from to take a maximum of four weeks’
fall within an employee’s right to
procedures), changes to overcome requires household members to being subjected to a detriment, and parental leave per child per year.
take unpaid dependant care leave.
barriers to physical features of the self-isolate for 14 days from the day any dismissal motivated by their need Strictly speaking, the employee must
This allows an employee to take
workplace, and/or providing extra when the first person in the household to take dependant care leave would give 21 days’ notice to take a period
unpaid leave to take necessary action
equipment to help the disabled became ill. Any member of the be automatically unfair. of unpaid parental leave, but this
because of the unexpected disruption
employee do their job. household who goes on to display can be waived by the employer at its
Employees with one year’s continuous or termination of arrangements for the
symptoms must go on to self-isolate discretion.
Employers may therefore want to service may also apply for a period of care of a dependant. However, some
for a further ten days from when their unpaid parental leave. This is available contracts allow the employee: (a) The employer may also consider,
consider: symptoms appeared (the 14-day for the purpose of caring for a child paid dependant care leave; or (b) to allowing the employee to:
• Asking workers to self-identify as household isolation is disregarded for under 18, and parents can apply take emergency annual leave in such
having higher-risk health conditions, these purposes). • Agree for the time to be taken as
to take a maximum of four weeks’ circumstances.
disabilities or other risk factors holiday
If the dependant does not live in the parental leave per child per year.
• Performing up-to-date risk same household, but the employee Strictly speaking, the employee must • Work from home if this is viable/
assessments for vulnerable staff has had close personal contact with give 21 days’ notice to take a period practical
the dependant, they may also be of unpaid parental leave, but this • By agreement, make the time up at
• Whether the worker needs can be waived by the employer at its
asked to self-isolate for 14 days by a later date
reasonable adjustments (e.g. varied discretion.
the track and trace system. In that
working hours so as to avoid
scenario, they are entitled to statutory The employer may also consider,
travelling on public transport at
sick pay during that period of self- allowing the employee to:
peak times)
isolation.
• If the vulnerable staff can perform • Agree for the time to be taken as
Employers who pay SSP for holiday
their duties from home (perhaps
coronavirus-related reasons can
with some reasonable adjustments • Work from home if this is viable/
reclaim this from the government.
to facilitate this) practical
If the dependant does not live in the
• If the work cannot be done from • By agreement, make the time up at
same household, and the employee
home, is there anything else that can a later date
has not had close personal contact
be done to reduce their risk (e.g. can
with the dependant, there is no
they be removed from higher-risk
entitlement to SSP. However, it is
frontline customer facing duties?)
What do the newly relaxed • Additional leave (i.e. the additional When will it not be
1.6 weeks’ leave each year): this
rules say about coronavirus- can be carried over into the next
‘reasonably practicable’ for
related holiday carry-over? leave year if the employer, a written an employee to take their
New regulations were introduced in agreement or the contract permits holiday for coronavirus-
relation to the COVID-19 outbreak such carry-over; related reasons?
on 27 March 2020. That was when • Ill health/pregnancy/maternity: the The phrase ‘reasonably practicable’
many employers were extremely rules regarding employees unable is not defined in the regulations. It is
busy furloughing their workforce, to take holiday due to ill health/ a phrase used in other employment
so awareness of the new rules is pregnancy/maternity leave (outlined legislation and is specifically designed
poor. These amended the principal above) have not changed. However, to allow an employment tribunal a
regulations (the Working Time if the reason for the ill health is wide discretion to determine whether
Regulations 1998). The new rules coronavirus-related, then the carry- it applies or not.
regarding carry-over of annual leave over period will be two years.
can be summarised as follows: Acas guidance suggests that it could
• Ordinary leave (i.e. the first four
Why is the precise wording apply where a worker:
weeks’ holiday each year): of the contract regarding • Is self-isolating and/or too sick to
- If it was not ‘reasonably holidays important? take holiday before the end of their
leave year;
practicable’ for the worker to take Many contracts now specify that
When can a worker rely on some or all of the holiday to which
the worker was entitled, as a
result of the effects of coronavirus
the first four weeks’ annual leave
is ‘ordinary leave’. Such wording
has risen in popularity because of
• Has been put on lay-off or furlough;
or
coronavirus-related reasons to carry
• Has been required to continue
(including on the worker, the EU holiday pay decisions in recent
working and could not take paid
employer or the wider economy years, which only apply to that part
holiday.
or society), up to four weeks’ of a worker’s minimum annual leave
over their holiday entitlement? holiday can be carried-over into
the following two leave years, and
the employer cannot refuse to
entitlement. For example, a common
form of contract wording is: ‘In each
holiday year, the first four weeks of
However, guidance from the
Department of Business, Energy and
Industrial Strategy (BEIS) suggests
allow a worker to take the carried- your holiday entitlement (or the pro that it will usually be reasonably
For the majority of employers who operate Background: what are the usual ‘pre-coronavirus’ forward holiday on particular rata equivalent during the first and practicable for furloughed workers to
a 01 January to 31 December holiday year, rules regarding holiday carry-over? dates without good reason; final holiday years) shall be deemed to take annual leave (unless, for example,
there are around 13 weeks of the current All workers are entitled to a minimum of 5.6 weeks holiday - If it was ‘reasonably practicable’ be the leave to which you are entitled the employer could not afford to top
under the Working Time Directive up their furlough pay).
holiday year left, in which to encourage the per year. The 5.6 weeks holiday is made up of 4 weeks for the worker to take holiday
ordinary holiday, which derives from the EU Working Time 2003’. The BEIS guidance recommends
workforce to take their accrued holiday (i.e. the effects of coronavirus on
Directive, and 1.6 weeks holiday, which is a domestic add-on. the worker, the employer or the If the employment contract or annual that the following factors should be
entitlement. Special rules were introduced Many contracts designate the additional 1.6 weeks’ holiday (8 wider economy or society have leave policy contains such wording, considered in relation to reasonable
earlier this year that allow workers to days) as statutory/bank holidays. not prevented the employee from any leave that a worker or employee practicability:
carry over any unused holiday entitlement The usual ‘pre-coronavirus’ rules regarding carry-over were that: taking holiday) the four weeks has already taken in the current • Whether the business has faced
if COVID-19 (coronavirus) meant that it ordinary leave cannot be carried- leave year will reduce the amount of a significant increase in demand
• Ordinary leave (i.e. the first four weeks’ holiday each year): over (save in maternity leave or ill ‘ordinary leave’ they can potentially
was not reasonably practicable to take can only be taken in the leave year in respect of which it health situations – see above); carry over for coronavirus-related
due to coronavirus that would
reasonably require the worker to
holiday. This article covers some of the is due – this cannot be carried-over (save in pregnancy/ reasons into the following two holiday continue to be at work and cannot
most frequently asked questions our maternity/ill health situations – see below); years. be met through alternative practical
employment team has received about the • Additional leave (i.e. the additional 1.6 weeks’ leave each measures;
year): this can be carried forward into the next leave year if
new rules regarding carry-over. • The extent to which the business’s
the employer, a written agreement, or the contract permits
workforce is disrupted by the
such carry-over;
coronavirus and the practical
• Ill health/pregnancy/maternity: case law has established options available to the business to
that employees unable to take holiday due to ill health/ provide temporary cover of essential
pregnancy/maternity leave, can carry over leave into future activities;
holiday years (case law suggests for a period of 15-18
months after the end of the leave year in which it accrued). continues on page 12 >>>
continued from page 11 >>> Any contractual enhancement (above Please be alert to the overlapping (e.g. if carry-over needs line manager employers are choosing to be more Can we pay in lieu rather
5.6 weeks) can be carried over if this duty to make reasonable adjustments approval) the employer may wish flexible and instead set general rules,
is permitted under the contract, or at for disabled staff (both in terms to issue a notice to the workforce which still allow the worker a degree
than carry-over holiday?
the employer’s discretion. of the application process and in confirming that only in exceptional of flexibility. For example, issuing a The underlying reason paid holidays
• The health of the worker and how determining whether to grant any circumstances will carry-over requests notice saying, ‘You must have used are provided in law, relates to the
soon they need to take a period of When and how can staff application to carry-over leave). be granted in the current holiday 80% (or 22.5 days) of your annual health, safety and wellbeing of the
rest and relaxation; use holiday carried over Employers may also find that female year (essentially a ‘use it or lose it’ leave by 31 Oct and 100% by 31 Dec’. employee. The employer has a duty to
for coronavirus-related staff have suffered a greater impact warning). encourage the worker to take the paid
• The length of time remaining in the How can we tell how much
(e.g. because they are statistically holiday to which they are entitled.
worker’s leave year, to enable the reasons? more likely to be single mothers Can we require workers to holiday will be carried over?
worker to take holiday at a later date BEIS guidance states that, ‘Employers
within the leave year; The maximum of four weeks’ unused and may be unable to share caring use their accrued holiday? Now would be a good time to audit should do everything reasonably
‘ordinary holiday’, which can be responsibilities) and this can lead to
In many situations, it is possible for how much holiday staff have taken practicable to ensure that the worker
• The extent to which the worker carried over for coronavirus-related the risk of indirect sex discrimination
an employer to require an employee proportionate to the time left in the is able to take as much of their leave
taking leave would impact on wider reasons, must be used in the following claims.
to take some of their annual leave at holiday year (e.g. use a red, amber, as possible in the year to which it
society’s response to, and recovery two leave years. For those with a 1
There may also be the need to make a time chosen by the employer. The green colour coding). This audit relates, and where leave is carried
from, the coronavirus situation; and January to 31 December leave year,
exceptions from the need to apply e.g. fact that an employee is on furlough process should identify staff who forward, it is best practice to give
• The ability of the remainder of the this will be into the 2021 and 2022 workers the opportunity to take
if a worker is in hospital and therefore leave makes no difference because appear to be stockpiling their annual
available workforce to provide cover leave years. holiday at the earliest practicable
unable to apply, or where pre-planned employees can take holiday while on leave. What it will not provide, without
for the worker going on leave. An employer usually has a wide leave falling close to the end of the furlough (provided they be paid their further investigation, are the reasons opportunity’.
The BEIS guidance goes on to state discretion to specify when a worker holiday year is cancelled at short full pay calculated in accordance with why workers have lots of leave The first 5.6 weeks’ annual leave per
that: ‘Employers should do everything can, or cannot, take their annual leave. notice because someone contracts the Working Time Regulations 1998 in outstanding. year (the statutory minimum) can
reasonably practicable to ensure that However, special rules apply to any coronavirus. the usual way during such holidays).
This audit should then be shared with only be paid in lieu upon termination.
the worker is able to take as much leave carried over due to coronavirus- The amended regulations expressly
related reasons, so that the employer How does the rule that The starting point is to check the relevant line managers who can:
of their leave as possible in the year employment contract to make provide that any payment in lieu on
to which it relates, and where leave cannot refuse to allow a worker to allows carry-over for sure if there are any contractual
• Identify if there are any reasons why
termination must include payment
is carried forward, it is best practice take it on particular dates without coronavirus-related reasons a worker has been unable to take
provisions, which allow the employer for any holiday carried over for
good reason. their accrued leave
to give workers the opportunity to overlap with contractual to designate a specific period of coronavirus-related reasons that
take holiday at the earliest practicable • Discuss with staff how much leave remains outstanding.
Can we ask our staff to carry-over rules? annual leave (such provisions are
opportunity’. very common). Secondly, check if they are intending to take in the
‘apply’ to carry-over holiday Rules permitting limited holiday carry- there is any ‘relevant agreement’ coming weeks
However, to the extent that the
There is an implicit expectation contract provides for additional
that employers and workers will
for coronavirus-related over (for non-coronavirus-related under the Working Time Regulations, • Encourage staff to, wherever contractual holidays (above the 5.6
work together to use a common- reasons? reasons) are common, particularly in which permits the employer to force possible, ‘use it or lose it’ weeks’ minimum), the employer and
workforces where there are peaks and an employee to take annual leave
sense approach to whether or not There is no process laid out in the employee can agree to a payment in
troughs in demand that can render it (such as a collective agreement). If • In cases where it has genuinely
it is ‘reasonably practicable’ for a regulations for any application lieu in respect of the excess holidays
very difficult for an employee to take the contract or relevant agreement not been reasonably practicable to
particular worker to take holiday. process, but it is certainly a sensible if they wish. An employer should not
all of the annual holiday entitlement, contains such provisions, the take leave, outline any application
approach to take. A simple form could unilaterally impose a payment in lieu,
How much holiday can be be devised for these purposes. An
or where the annual leave allowance employer should comply with those process to carry over holiday for
agreement should be sought from the
is very generous. They may appear in terms (which may include giving coronavirus-related reasons.
carried-over for coronavirus- application process would allow a line the employment contract or collective
employee, giving a sound business
a minimum amount of notice of a
related reasons? manager to have a sensible discussion agreement (in which case they are period of leave).
rationale, to avoid breaching the
with a worker about the reasons why employment contract.
Where the effects of coronavirus (on binding), or holiday policy (in which
they have not taken their accrued case they can usually be varied by a In the absence of such express If you have any queries regarding
the worker, employer or wider society) provisions, an employer requiring
leave. In many cases, it may be notice to staff). coronavirus-related holiday carry-
render it not reasonably practicable a worker to take leave at specified
possible to facilitate the worker using over, or any other employment
for him or her to take holiday, up to An employer can minimise the impact times, must give notice equivalent to
some of their accrued but unused matter, please do not hesitate to
a maximum of four weeks’ unused of this potential overlap by doing at least twice the period of leave to
leave before the end of the current contact Emma Ahmed, or browse our
ordinary leave can be carried over what it can to minimise how much be taken. For example, the employer
holiday year (or to at least minimise employment services.
under the amendment to the Working annual leave is carried over (e.g. by must give two days’ notice to take
how much leave is carried over). The
Time Regulations 1998. designating specific periods of time one day of leave, or two weeks’ notice
ability to facilitate a worker taking
A written agreement (such as the their annual leave would be a good as annual leave – see below). If the to take one week of leave.
employment contract or a collective reason to reject such an application carry-over rules are non-binding, the
employer may wish to vary them An employer can use these powers
agreement) can allow the 1.6 weeks to carry over leave because it ‘is’ to designate a particular period
(additional leave) to be carried over reasonably practicable for the worker (possibly temporarily). Further, if the
right to carry over is not automatic as annual leave. However, many
under ordinary rules. to use their annual leave entitlement.
Meet
Which 5 people (alive or dead) If you would like to know more about us, or any other
would you invite to a dinner party services we provide please visit our website or contact:
at your house? Jeff Middleton
the
Partner (Manchester)
Is this allowed at the time of writing, 22 September +44 (0)161 817 7260
2020? jeff.middleton@hilldickinson.com
Kerstie Skeaping
Partner (Liverpool)
1. John Lennon (my late grandfather always +44 (0)151 600 8498
told me he was his mate, and I’d like to kerstie.skeaping@hilldickinson.com
team
check) James Williams
Partner (London)
2. Martin Luther King
+44 (0)20 7280 9245
3. Kim Jong-un james.williams@hilldickinson.com
4. Oprah Winfrey Amy Millson
Legal Director (Leeds)
5. Jurgen Klopp +44 (0)113 487 7969
amy.millson@hilldickinson.com
Luke Green
Partner and head of education/schools
(Liverpool)
Mark Cranshaw +44 (0)151 600 8791
luke.green@hilldickinson.com
Associate,
Commercial Employment, Liverpool
What is your greatest What are your favourite/least
achievement? favourite foods?
I have a Blue Peter Badge, swam at national Favourite food = Bibimbap (google this if you
level, played (and won) a frame of pool haven’t tried it – it’s a ‘no brainer’)
with an Emirati prince, but my greatest
Least favourite food = cauliflower cheese
achievement is surely convincing my boss (a
die-hard and deluded Evertonian) to let me
join the team!
What is the bravest or craziest
thing you have ever done?
Where’s your favourite place in I’m not sure which category (bravest or
the world to visit? craziest) this fits into but a shark scuba dive
in an aquarium in Busan is up there (a close
second is challenging the person with the
Langkawi, Malaysia highest IQ on the planet to a ‘karaoke-off’).
This newsletter has been prepared for general information purposes only, it is not legal advice and is not to be acted upon as such. It is
accurate at the time of publication, but may not remain current thereafter. Specific legal advice should be taken as and when required.
hilldickinson.com
About Hill Dickinson Hill Dickinson LLP is a leading and award-winning international commercial law firm with more than 850 people including 185 partners and legal directors. The firm delivers advice and strategic guidance spanning the full legal spectrum, from non-contentious advisory and transactional work, to all forms of commercial litigation. The firm acts as a trusted adviser to businesses, organisations and individuals within a wide range of specialist market sectors. hilldickinson.com hilldickinson.com Liverpool Manchester London Leeds Piraeus Singapore Monaco Hong Kong
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