REWARD
Part-year workers, protection from discrimination and protected disclosures
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
The major changes to holiday calculations for part-year workers
in which remuneration was payable. Employers should discount any weeks in which no wages were paid and can go back for a maximum of 104 weeks to get 52 paid working weeks. There are several changes employers will need to make due to this judgment. First, they should assess which workers the judgment impacts. Remember, there will be no effect on entitlement to 5.6 weeks for those who work every week of the year, including those who work part-time for 52 weeks. Holiday leave can also continue to be pro-rated for those on fixed-term contracts and those who join or leave the organisation part way through the holiday-year. For these workers, annual leave entitlement will be equivalent to the length of the contract. Where the judgment impacts staff, employers should ensure they speak with them and update them of any changes. Contractual clauses may need to be amended, especially where there’s reference to the pro-rating of entitlement or use of the percentage method. Similarly, where employers have previously pro-rated leave or pay, they will have to ensure all staff are able to take their full 5.6 weeks’ leave entitlement within the holiday year. Employers might also have to provide backpay to compensate for previously underpaid holiday pay. Unionised organisations should work with trade union representatives to communicate any implications and changes with the workforce.
The UK Supreme Court is the highest a case can go; its decision is final and cannot be appealed or overturned. The only way there may be changes to the ruling is if the government intervened and changed the wording of the law to allow part- year workers’ leave entitlement to be pro-rated. Similarly, only by changing legislation could the 12.07% method be lawful. Since there are no current plans to do so, it’s best for employers to follow the judgment of the Supreme Court. Failure to do so poses a significant risk of unlawful deductions from wages claims being raised. Employee’s offensive views still protected from discrimination In a highly publicised case, Maya Forstater successfully appealed to the employment appeal tribunal (EAT) that her gender-critical views were protected as a philosophical belief under the Equality Act 2010. She believes it’s impossible to change sex, saying “biological sex is immutable”, which contradicts the views of many trans people and trans supporters. Forstater posted her opinions on her personal Twitter account, which included “I don’t think people should be compelled to play along with literal delusions like ‘trans-women are women’”, and “radically expanding the legal definition of ‘women’ so that it can include both males and females makes it a meaningless concept and will undermine women’s rights and protection for vulnerable women and
The Harpur Trust v Brazel case was first raised to the employment tribunal (ET) in 2015, and after it progressed through the lower rankings of the tribunal system, we waited over eight months for the UK Supreme Court to reach a final decision from the hearing. As such, employers were in a position where they were unsure of the correct approach to take when calculating holiday leave and pay entitlement. The judgment was handed down by the Supreme Court on 20 July 2022, meaning we now have clarity. The case questioned the lawfulness of using the 12.07% method to calculate accrued holiday pay and leave entitlement. It also questioned whether holiday leave entitlement can be pro-rated for people who don’t work every week of the year. This would include those on a zero-hours, variable-hours, casual, agency or term-time contract. Together, these can be categorised as ‘part-year’ workers. The Supreme Court decided that annual leave cannot be pro-rated for part-year workers, highlighting there’s nothing in existing legislation which allows employers to do so. It also confirmed the ‘percentage method’ (i.e., using 12.07% to calculate entitlement) must not be used. Instead, all workers are entitled to 5.6 weeks of paid annual leave. Holiday pay for this leave should be calculated based on a worker’s average weekly earnings over the previous 52 weeks
| Professional in Payroll, Pensions and Reward | October 2022 | Issue 84 46
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