Read on for our monthly digest for employers on upcoming employment law changes and key employment cases that have recently been decided.
Holiday pay accrual
Conner v Chief Constable of the South Yorkshire Police
Mr Conner was dismissed following a period of illness. On termination of his employment, he was entitled to payment in lieu of accrued but unused holiday time. His employment agreement stipulated that this would be computed at a rate of 1/365.
As a salaried employee, if Mr Conner had taken this holiday during the course of his employment, he would have received the same amount of pay as if he had been at work. However, when the contractual accrual rate of 1/365 was applied, the value of this accrued holiday was less than his salary.
Mr Conner brought a tribunal claim to recover the shortfall. The tribunal denied his claim, finding that the 1/365 contractual accrual rate was a “relevant agreement” for the purposes of the Working Time Regulations (WTR). The WTR governs pay in lieu of accrued holiday when an employee leaves during the leave year. It stipulates that the quantity owed in these situations will either be determined by a “relevant agreement” (which can include a contractual clause) or by a statutory formula.
Mr Conner filed an appeal.
The EAT allowed the appeal. The standard method for calculating a week’s pay for a worker with regular working hours and consistent pay is to divide their annual salary by 52. This is the total sum paid for both working time and holiday time. A contract may alter the method for calculating accrued holiday pay. Nonetheless, a ‘relevant agreement’ must stipulate a method of calculation consistent with the WTR’s provisions. It cannot provide for a calculation that results in the employee being worse off than if they had worked instead of taking the leave or being paid for it.
This case reinforces the fundamental purpose of our holiday pay law framework, which is to ensure that employees are not dissuaded from taking their leave. If they are paid less than their normal wage during a leave period, they are less likely to take holidays.
Employers must ensure that contractual mechanisms governing the calculation of accrued vacation time do not result in a lower quantity of pay than the employee would have received if they had been at work.
Unfair dismissal
Gunn v Star International Enterprises Ltd T/a Auchingarrich Wildlife Park
Ms Gunn was employed at Auchingarrich Wildlife Centre, which shelters potentially dangerous domestic and wild animals. The park operated specific safety and control measures, such as “do not enter” or “staff only” signs and locked doors.
Ms Gunn permitted a former coworker to visit the park and took her to an area accessible through a locked entrance with a “staff only” sign.
After it was discovered that Ms Gunn had breached company policy by allowing a visitor to enter a staff-only area, she was dismissed.
Ms Gunn filed a claim with the Employment Tribunal, on the grounds that she had not been given any evidence about the incident prior to her dismissal. Despite promising to do so, the centre also did not confirm the decision in writing by letter or other means, and Ms Gunn was not given the opportunity to explain her actions.
The tribunal found the employer had failed to follow the proper procedure in dismissing Ms Gunn. The Acas Code of Practice had been breached through “numerous and grave procedural flaws”, according to the tribunal judge. “No investigation report was prepared, and written evidence was not provided to Gunn before the disciplinary hearing.” As such, the dismissal decision fell outside the range of reasonable responses.
The decision is a reminder to employers of the importance of conducting fair and lawful procedures when dismissing employees. This should include having a suitable disciplinary policy in place and training staff on the correct procedures to follow. It may also require the employer to commission an external specialist to mange the disciplinary process to manage risk and ensure compliance.
Protected beliefs
Higgs v Farmor’s School and the Archbishops’ Council of the Church of England
Mrs Higgs, a school administrator, was dismissed for criticising in a number of posts on Facebook the nature of sex education in schools and, in particular, the teaching of ‘gender fluidity’. Some of these posts were considered by Farmor’s school to be discriminatory. Following an investigation, she was dismissed on the basis that the school had concerns that someone reading the posts could interpret them as homophobic or transphobic.
Mrs Higgs brought a tribunal claim for both direct discrimination and harassment on the basis of religion or belief.
The school argued that the ground for dismissal was not because of the claimant’s belief, but instead the potential perception of others.
At first instance, the tribunal rejected Mrs Higgs’ claims. She appealed the decision.
The EAT considered whether a tribunal has to consider whether or not the motivation of an employer was the employee’s religion or belief, or whether it was solely the way in which the employee manifested that religion or belief.
The EAT concluded that the employment tribunal should have conducted a proportionality assessment to determine whether the school’s actions in disciplining and dismissing Higgs were based on, or related to, the manifestation of her protected beliefs, or whether they were instead based on a justified objection to the manner in which those beliefs were manifested.
The EAT went on to establish some guidelines for evaluating the proportionality of any interference with the rights to freedom of religion, belief, and expression:
- The freedom to manifest one’s beliefs is a fundamental privilege in all democracies, regardless of whether the belief in question is mainstream or popular, and even if its expression may be offensive.
- The manifestation of belief is protected unless the law permits its limitation to the extent required to secure the rights of others.
- Whether a limitation or restriction is objectively justifiable will always depend on the specific circumstances.
- It will always be necessary to ask: (i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right at issue; (ii) whether the limitation is rationally connected to that objective; (iii) whether a less intrusive limitation could be imposed; and (iv) whether, weighing the rights of the affected worker against the importance of the objective, the former outweighs the latter.
- Regard should be paid to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to conduct business; and (vi) whether the worker has made it clear that the views expressed are personal, or whether they could be construed as representing the employer.
The EAT has remitted the case to the same ET to consider by way of a careful proportionality assessment whether the school’s actions were lawful and were necessary for the protection of the rights and freedoms of others.
While the guidance from the EAT does not serve as an exhaustive checklist, it does provide employers with clear direction on the factors to consider prior to disciplining employees who have attempted to express their beliefs in a manner that others may find offensive.
The balancing of these rights in the workplace is a complex challenge for employers, requiring careful management both to avoid and deal with conflicts that may arise.
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Last updated: 26 June 2023
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
