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courier business ● any financial risk was substantially mitigated by the actions of Addison Lee which cushioned him against any loss via the pay structure ● he was held to the outside world as being part of the company’s fleet and Addison Lee held itself out to him as an employer that would provide him with direction and look after his needs. Olukanni v John Lewis Plc The definition of a disability under the Equality Act 2010 (‘the Act’) contains several elements which must be met if an individual is to receive protection. One such element is the need for a condition to have a substantial adverse effect on the ability to carry out day to day to activities, and the Employment Appeal Tribunal (EAT) recently dismissed an appeal on this point. The employee suffered from a condition; however, the effect of it was not sufficiently substantial to gain protection. The claimant, Olukanni, worked as a selling assistant for John Lewis. She contended that John Lewis had failed in its duty to make reasonable adjustments to her role; a duty that applied because she was disabled under the Act. Olukanni suffers from a disability that has features of semantic pragmatic disorder which affects communication. In such cases, the burden of proof is on the individual to show that he/ she has a disability that meets the required definition. In order to meet the definition in respect of being ‘substantial’, the effect must be more than minor or trivial. Olukanni gave the following evidence about her condition: “I find that at times I can take things which are said to me literally, so that I miss the context in which they were said. That means that I can easily miss the point of what is being said. In part as a result, I find myself being or becoming anxious frequently.” A medical report on Olukanni found: “In general conversation [the appellant] reported that she finds it difficult to follow other people’s jokes and may unintentionally misinterpret a joke as being offensive to her. [The appellant] felt that she can be somewhat sensitive and feels vulnerable that she is misinterpreting [others’] words and/ or actions. [The appellant] explained that she likes a familiar routine and does not like it when her routine is changed; [the appellant] finds it challenging to adjust to changes and reported that she needs additional time to
overtime, voluntary standby allowances, voluntary call-out payments and travel allowances. The ET noted, under the case White v Dudley Metropolitan Borough Council, the status of the overtime as being voluntary in that staff could drop on and off the rotas to suit themselves whether day by day, week by week, month by month or permanently; the decision to do it or not was “almost entirely at the whim of the employee”. The ET decided that normal weekly pay for the purposes of calculating holiday pay must include payments earned by doing voluntary overtime when it is done on a regular basis. For example, two employees worked regular Saturdays: one worked every Saturday and the other worked most Saturdays. This overtime was sufficiently regular for it to be considered normal pay. Another employee only received overtime in major emergencies and on odd occasions and this was not sufficiently regular to be considered normal pay. The council appealed to the EAT which stated that European Union (EU) law requires that normal non-contractual remuneration must be maintained in respect of the four-week period of annual leave guaranteed by EU law in order to ensure that a worker does not suffer a financial disadvantage by taking leave. It found that 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’, voluntary overtime pay must be included in holiday pay. It will be for an ET to determine whether the overtime payments are sufficiently ‘regular and settled’ to become ‘normal’. Having an intrinsic link between the payment and the contractual tasks is a factor of whether this is normal pay, but it will not be the only decisive factor. Call out allowances and out of hours payments should also be included in holiday pay where these are normally paid. No guidance was given on what level of regularity or frequency is required and this will depend on the facts of each case but the EAT had no difficulty with the conclusion that overtime performed for one week in every four or five weeks, as in this case, was ‘regular’. The decision may be appealed once again to the Court of Appeal so this is not likely to be the end of a case which could have significant ramifications for some employers. n
accept even the smallest change to a specific role.” The ET found that Olukanni’s condition did not have a ‘substantial adverse effect on her ability to carry our day to day activities. It concluded that her condition would have that effect on her ability to carry out new duties; she relied on the fact that she sometimes had to ask for instructions to be repeated but, the tribunal agreed, this is common among other non-disabled members of staff. As an example of finding it difficult to adjust to changes, Olukanni had given as an example her dissatisfaction at her mother wanting to change her bedroom furniture around but the tribunal noted that this did not constitute ‘day to day activities’. Olukanni appealed, but the EAT declined to overturn the original decision. It said the ET had taken fair and appropriate account of all of the evidence and, as a result, Olukanni had not been able to convince either court that she was disabled under the Act. ...overtime performed for one week in every four or five weeks, as in this case, was ‘regular’ Dudley Metropolitan Borough Council v Willetts and others The EAT has now given the first binding decision on the payment of voluntary overtime in holiday pay. It represents a significant decision but one which was arguably inevitable after a similar decision on the inclusion of commission payments in holiday pay. The claim was brought by a group of tradesmen employed by Dudley Metropolitan Borough Council (the council). They were regularly invited to work on Saturdays or go on standby to deal with emergency call outs. They were not contractually obliged to undertake this work and whether they did it or not was purely at their own discretion. Employees worked different shift patterns and they undertook different amounts of voluntary overtime. Five employees brought a claim on behalf of 56 others for an unlawful deduction of wages, arguing that they had not received the correct rate of holiday pay because it did not include amounts in respect of voluntary
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Issue 34 | October 2017
| Professional in Payroll, Pensions and Reward |
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