REWARD
Nicola Mullineux, senior employment tax specialist for Peninsula, outlines three recent employment tribunal claims and considers their outcomes Legal action
ET failed to apply correct test when considering carry-over of annual leave during Covid The Employment Appeal Tribunal (EAT), in the case of Knight v Off Broadway Ltd, had to consider if the employment tribunal (ET) had correctly approached the question of whether the claimant could have taken annual leave in the year it was accrued or if, because of Covid, it was not reasonably practicable. The bar, where the claimant was manager, closed due to the Covid-19 restrictions during the first lockdown. Instead, it traded as a takeaway by serving food through its window. The claimant ran the takeaway as all the other staff were furloughed. Once the bar reopened there was a curfew in place, but the respondent became aware that the claimant had allowed the bar to breach it. The respondent emailed all staff to dismiss them. The claimant brought claims of unfair dismissal, wrongful dismissal (failure to give contractual notice) and accrued but unpaid holiday pay. It included a claim that holiday pay from the 2019/2020 holiday leave year should have been carried over to the
next leave year (the holiday year ran from 1 October to 30 September) and then paid upon the claimant’s dismissal. In relation to the holiday pay claim, the claimant argued that he hadn’t been able to take all his holiday because of the impact of Covid-19. The claimant sought to rely upon amendments that were made to the Working Time Regulations 1998 during the pandemic which allowed employees to take annual leave into the next holiday leave year when it wasn’t reasonably practicable for them to take it because of Covid-19. This amendment was removed from 1 January 2024 and workers had until 31 March 2024 to take any leave that they had carried over because of this temporary change in the law. The ET found that because of unfairness in the investigation and procedure the dismissal was unfair. However, it was held that there was an 80% chance that the claimant would have been dismissed anyway had a proper procedure been followed and the employee was guilty of blameworthy conduct. In relation to the holiday pay claim, the ET held that the claimant worked flexibly as bar manager and had the opportunity to take holidays from work when he wished
to do so. The claimant organised the roster and could have taken days off as holiday. The ET found that there was not enough evidence that coronavirus interfered with the claimant’s ability to take holiday for the Working Time (Coronavirus)(Amendment) Regulations 2020 to apply. This claim was, therefore, dismissed. The EAT had to consider whether the ET had correctly concluded that the claimant was not entitled to carry over any accrued but unused holiday entitlement. It held that because of the European Court of Justice case, Max Planck Gesellschaft v Shimizu, the employer is required to ensure that the worker is actually in a position to take the paid annual leave to which they are entitled by encouraging them “formally if need be” to do so, while “informing” them in good time that leave not taken during the holiday year will be lost. The EAT found that the ET in this case relied on the fact that the claimant was free to organise his own holidays and had the opportunity to do so. The EAT held that the ET failed to engage with, and make a finding about, whether the respondent fulfilled their duty that arose from the Shimizu case. The case has, therefore, been remitted back to the same tribunal for this to be considered.
“The ET found that because of unfairness in the investigation and procedure the dismissal was unfair. However, it was held that there was an 80% chance that the claimant would have been dismissed anyway had a proper procedure been followed”
Asking a job applicant the age of their children can be discriminatory
In the case of Lee v R&F Properties QS (UK) Co Ltd, the ET had to consider whether a job applicant had been
| Professional in Payroll, Pensions and Reward | October 2024 | Issue 104 36
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