Employment
review of her working pattern in 2013, agreed that her childcaring responsibilities meant that her existing working arrangement could continue. However, in 2016, her employer adopted a new policy which meant that flexible working arrangements needed to be reviewed. The claimant was later asked to work occasional weekends once a month, but she explained that, given her situation, she would not be able to accommodate a change in her working pattern. The claimant, therefore, refused the suggested working pattern and filed an unsuccessful grievance complaint. Her appeal against this decision was also unsuccessful. She was offered a fire and re-hire arrangement in 2017 based on new terms which required her to work additional days. A notice of dismissal was given to the claimant after she refused re- engagement under those terms. Her appeal against this dismissal was also unsuccessful and so she brought a claim for unfair dismissal and indirect sex discrimination to the ET. Her claim was dismissed by the ET on the basis that the provision, criterion or practice (PCP) used by her employer was their requirement for all staff to work more flexibly and that it applied to both men and women. It, therefore, could not be said that the PCP disadvantaged the claimant more because of her sex, especially because all other members of her team were able to accommodate the new requirement. It was further decided that her employer was pursuing a legitimate aim by making the team more flexible. The claimant appealed to the EAT, who upheld the appeal. The EAT held that the ET had erred in its decision and remitted the case to the same ET for reconsideration.
...agency workers would not accrue annual leave pay whilst on furlough, if they wouldn’t ordinarily under their normal agreement when they were between assignments
On forming its decision, the EAT found that the pool for comparison should not have been limited to just the claimant’s team. Rather, the claimant’s situation should have been compared to all community nurses within the particular National Health Service (NHS) Trust where she was employed. By widening the pool of comparison, it was found there was evidence of group disadvantage. Furthermore, the EAT noted that the ET should have considered the fact that generally women are, more often than men, not able to accommodate certain work patterns due to their child-caring responsibilities. Perkins v The Best Connection Group Limited The claimant signed with the respondent, an agency which places agency workers with various clients, in June 2019. When lockdown was announced in March 2020, the claimant performed his last shift on assignment on or around 17 March 2020. The claimant wasn’t initially placed on furlough as the respondent was unable to free up the cashflow to make payments to its temporary workers, pending receipt of the government’s grant payments under the furlough scheme. It was also unclear whether workers would accrue annual leave whilst on furlough. In May 2020, the claimant was informed he would be furloughed, along with a small number of workers. This was
due to some clarity from the government, to the effect that agency workers would not accrue annual leave pay whilst on furlough, if they wouldn’t ordinarily under their normal agreement when they were between assignments. The claimant’s furlough began on 11 May 2020. During the time spent on furlough, a period between March and May 2020, the claimant did not perform any work for the respondent. The period of furlough ended on 20 July 2020 and issues arose when the claimant attempted to receive accrued annual leave payments for this time. The government’s advice to employers on annual leave and furlough states: “Some agency workers on a contract for services may not be entitled to the accrual of holiday or to take holiday under the Working Time Regulations while on furlough because they are not workers, or treated as workers under those regulations when between assignments or otherwise not working on assignments.” Analysis of the claimant’s contract with the respondent highlighted that the agreement only existed, and so only had effect to implement the terms and conditions within it, when he was on assignment. Specifically, the claimant would not “receive payment from [the respondent] or its clients for any time not spent on assignment, whether in respect of holidays, illness or absence for any other reason.” Because of this, the judge ruled that holiday pay was not due. The claimant was unable to work while on furlough and therefore could not claim to be on assignment. This meant the agreement was not in force throughout that period and so no holiday pay accrued. It is worth noting that the situation may be different depending on the wording of the contract that work is performed under. This case hung on the specific provisions of the contract; others may not contain similar wording or may operate differently in practice. n
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| Professional in Payroll, Pensions and Reward |
Issue 74 | October 2021
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