break was only paid for 30 minutes, not the hour. His daily pay was £1.95 higher. The tribunal found that this offset those less favourable terms.
The EAT disagreed; an agency or hirer cannot offset a failure to confer a specific AWR entitlement (e.g. the same annual leave) with a higher rate of pay. The entitlement is to the same basic terms and conditions as comparable employees on a 'term-by-term' basis with equal terms, not by comparing the overall package. However, parity can be achieved in different ways, e.g. identical holiday pay could be provided by a lump sum at assignment end, or in 'rolled-up' holiday pay. If so, the payment mechanism must be transparent so the agency worker can readily ascertain how remuneration relates to annual leave. The EAT rejected a contention that the Claimant's entitlement to the same 'duration of working time' entitled him to work the precisely the same number of hours as comparable employees (e.g. a 39-hour week); the entitlement would be to the same working time as employees, so not getting an 8-hour shift when the employees' maximum shift is 6 hours.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
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Discrimination: Date of Decision 7 March 2018
How should a case be approached where an employer decides to dismiss an employee without knowing they are pregnant, but finds out before the dismissal takes effect?
The Employment Appeal Tribunal (EAT) held, in Really Easy Car Credit Limited v Thompson , that the key question is whether the decision was made because of the pregnancy.
Mrs Thompson was dismissed during her probationary period. RECC said they were unhappy with her performance and conduct. Mrs Thompson argued it was because of her pregnancy. She said RECC lied about when the decision to made, to give the impression it happened before she told them of her pregnancy. This factual account was rejected. But the tribunal still found dismissal was automatically unfair and an act of pregnancy discrimination. Once RECC knew about the pregnancy it was obvious the issues that had trigged the dismissal were related. The EAT rejected this reasoning. The decision to dismiss couldn't have been because of the pregnancy, when RECC knew nothing about it at that time. Nonetheless, the case was remitted to the tribunal to consider whether the directors re-examined their decision after they learned of the pregnancy. A re-examination that was based on Mrs Thompson's pregnancy might allow her claim to succeed.
With thanks to Daniel Barnett’s employment law bulletin for providing this case summary.
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Calculating holiday pay for term time workers 12 March 2018
Can holiday pay for term-time workers be capped at 12.07% of pay under the Working Time Regulations ?
No, held the Employment Appeal Tribunal (EAT) in Brazel v The Harpur Trust , upholding a visiting music teacher's appeal on the approach to calculating her holiday pay.
The Claimant worked at the Respondent School in term-time on a zero-hour contract. The School calculated holiday pay pro rata to the proportion of the year worked, paying it at 12.07% of a term's pay (i.e. using the percentage reflecting 5.6/46.4 weeks). On a working 'year' of 32-35 weeks, the effect of this was that holiday pay came out lower than if calculated on the basis set out in s224 ERA, taking a 12-week average of pay from weeks actually worked, and ignoring the out-of-term weeks. The EAT held that basing holiday pay on the 12-week average was the correct
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