Gary Fox died aged only 44. 20 days before he had had surgery which it was hoped would make him fit again for work. But he had been dismissed from work – because, it was said, he was not physically capable of it, only 5 days earlier than that. If he had still been in work when he died, he would have been entitled contractually to a death in service benefit of three times his annual salary (over £85,000). Because he was dismissed he had nothing. On the assumption that the dismissal was unfair, or discriminatory in breach of the Disability Discrimination Act 1995 could he claim to have lost that sum? Employment Judge Hyams at Watford Employment Tribunal thought not. He said that a much smaller sum, around £350, was payable. The effect of his reasoning was that if an employee is dismissed with effect from (say) the 21st of the month, and he dies at one minute to midnight on that day, his loss is to be measured in thousands of pounds, but if he survives one minute into the next day it is at most a few hundred. The principal issue for this Court on the appeal is whether the Judge was right.
CALCULATING HOLIDAY PAY ENTITLEMENT
13 August 2013
In a recent case a Tribunal was asked whether employers are required to base their calculation of holiday pay on employees’ actual remuneration - including overtime, or only their basic salary. The Employment Tribunal confirmed that holiday pay entitlement must be based on actual remuneration for contractually required tasks, noting that overtime and shift premia must be included in the calculation.
This case will be of particular interest to employers in the retail sector where overtime, shift premium and other such payments are commonplace.
Pinsent Masons takes a closer look at the case in their HR Briefing .
At a Glance In the recent case of Neal v Freightliner Limited , an Employment Tribunal (ET) was asked to consider whether employers are required to base their calculation of holiday pay on employees’ actual remuneration (including overtime pay) or their basic salary alone. The ET confirmed that holiday pay entitlement must be based on actual remuneration for contractually required tasks, noting that overtime and shift premia must be included in the calculation. Background This judgment follows on from the recent Supreme Court decision in British Airways plc v Williams and Others in which it was held that employees should be paid their “normal remuneration” during their four weeks’ statutory annual leave. The principle is that employees should be put in a financial position comparable with periods of work. In the BA case it was held that the pilots’ holiday pay should be calculated by assessing average payments made over a representative reference period, including flying pay supplements. In the wake of this decision there had been some uncertainty as to the wider application of this principle, as the BA case was dealt with under the Civil Aviation (Working Time) Regulations. However, the decision in Neal v Freightliner Limited leaves little doubt that the scope of this principle has been extended beyond the airline industry and we are seeing a considerable number of claims for holiday pay to include payments for overtime, shift premia and other allowances. The Employment Tribunals have also released statistics which show that claims under the Working Time Regulations (WTR) doubled in the first quarter of 2013 and accounted for a third of all claims submitted!
CIPP Policy News Journal
16/04/2014, Page 109 of 519
Made with FlippingBook - Online magazine maker