August 2022 | Employment Law Services (ELS) LTD

Top Tips for Employers to Effectively Manage Employee Grievances

Posted on 31 August 202231 May 2023 by @deliver_els

Our ‘Top Tips’ for employers to help them to effectively manage employee grievances to contribute to positive working relationships and prevent minor issues escalating into more serious matters.

What is a Grievance?

A grievance is a complaint made by an employee to their employer to resolve workplace disputes, and which requires the employer to take further action. Grievances can be solved by informal discussions, formal procedures, mediation, conciliation or arbitration. We have set out below some general advice on investigating a grievance, conducting a grievance meeting and dealing with any appeal.

Employers should bear in mind that employees who raise a formal grievance are already likely to be feeling upset and it is important to respond appropriately to prevent the situation from escalating.

These tips for effective grievance management are intended to provide employers with a summary of the issues that may need to be considered and is not intended to be a detailed analysis of the law in this area. For advice on a specific case, please contact us via our website or Book a Free Consultation online with one of our specialist employment law advisors.

Initial Considerations When Managing a Grievance

It is best to avoid an antagonistic approach when responding to an employee’s grievance and to keep an open mind. When dealing with an employee’s grievance it is advisable to take the following into account:

The company’s grievance procedure.
The Acas Code of Practice on Disciplinary and Grievance Procedures and supporting Acas guide to discipline and grievances at work.
The Acas guide to workplace investigations.

The first consideration is whether the matter should be dealt with formally under your grievance procedure, or whether informal resolution is a suitable option. You should be guided by the employee’s wishes and by the nature of the grievance raised. For example, if an employee has been offended by an off-hand comment made by another employee, an informal word with the employee in question may resolve the matter sufficiently from both the aggrieved employee and the employer’s perspective. In other cases, involving a more serious breakdown of the relationship between employees, other forms of resolution such as workplace mediation can be appropriate and more effective.

However, where a grievance raises a potential legal issue, you should deal with it under your formal procedure in order to establish whether any action needs to be taken internally and to protect your legal position. For example, a grievance alleging discrimination should always be thoroughly investigated, even if the employee is reluctant for it to be treated as a formal grievance.

Consideration should also be given at an early stage as to whether:

The grievance raises issues under other policies such as your whistleblowing, bribery, equal opportunities, anti-harassment or bullying, or stress at work policies, and whether any of those policies provide a more appropriate procedure.
The employee has a disability and, if so, whether you should make any reasonable adjustments to the grievance process to help ameliorate any disadvantage caused to them by their disability.
The grievance raises issues that could potentially result in disciplinary action against another employee or employees.
If the matter needs to be dealt with as a formal grievance and requires investigation, you should ensure that a fair and balanced investigation into the grievance and the surrounding circumstances is carried out.

Appoint a Grievance Investigator

When deciding who should investigate the grievance, you should take into account the seriousness and complexity of the matter and the nature of the grievance. For example, if discrimination or harassment is alleged, an investigator who has up to date equal opportunities training should ideally be appointed.

In many cases, an appropriate line manager or someone from HR could carry out the investigation. However, if the evidence to be investigated is serious or complex, it would be desirable to appoint someone more senior or experienced. It is important that the investigator is not involved in any way in the issues raised in the grievance.

The Grievance Investigation

An investigation is a fact-finding exercise to collect all the relevant information on the issues raised in the grievance. A properly conducted investigation will enable you to make an informed decision on the grievance after a full consideration of all the relevant facts. Making a decision on a grievance without first completing a reasonable investigation could potentially make that decision unfair and leave the business vulnerable to legal action.

An investigatory meeting with the aggrieved employee will usually be required at an early stage. This will help the investigator establish the issues surrounding the grievance, what other witnesses need to be interviewed and what evidence needs to be obtained.

Any investigatory meetings to interview the employee or other witnesses should be held in private and notes should be taken of the meeting. The number of witnesses should be restricted to the minimum required to establish the facts surrounding the grievance. It is good practice for the investigator to prepare written witness statements and ask the witnesses to approve these before the investigation is concluded.

In addition to interviewing witnesses, the investigator should consider whether physical evidence, such as CCTV or computer or phone records may be relevant to the investigation.

Once the investigator considers that they have established the facts surrounding the grievance, as far as is possible and appropriate, it is good practice for them to prepare a written investigation report setting out the scope of the investigation, the process followed to investigate and a summary of their findings.

Confidentiality

Confidentiality is important throughout the grievance process, both in relation to the investigator, the meeting chairs, note-takers and any witnesses interviewed. Witnesses should be advised to not discuss the grievance or investigation with other employees or third parties and, where appropriate, reminded of their legal duties of confidentiality. You should make it clear that any breach of confidentiality will be treated as a disciplinary matter. However, the employee should be free to discuss the matter with their employee representative, should they have one.

The Grievance Meeting

A grievance meeting should be held as soon as possible after a grievance has been received. In some cases, it will be appropriate to hold the meeting shortly after receiving the grievance and then adjourn the meeting while the investigation is carried out. This approach may be particularly helpful if it would be beneficial to clarify the issues raised in the grievance before the investigation starts.

In many cases, it is appropriate for the investigator to also chair the grievance meeting. Alternatively, you may wish to appoint another manager to hear the grievance who has not been previously involved. You should, however, bear in mind that a person in a senior position should be kept out of the grievance process at this stage in order that an impartial senior person is available to hear any appeal.

The meeting should be held at a reasonable time and place, in a private meeting room during the employee’s normal working hours. Sufficient notice should be given for the employee to adequately prepare and make suitable arrangements to attend the meeting. The invitation to the meeting should set out the employee’s right to be accompanied by either a colleague or a trade union representative if they wish.

There should also be someone present to take notes of the meeting, a copy of which should be provided to the employee following the meeting. The note-taker is often someone from HR.

At the start of the meeting, the chair should introduce those present and explain the purpose of the meeting. If the employee is unaccompanied, the chair should remind them again of their right to be accompanied. The chair should emphasise that the primary purpose of the meeting is to work towards a resolution of the employee’s grievance. The chair should try to ensure that the meeting remains conciliatory rather than adversarial and be aware that the employee may find discussing their grievance stressful and upsetting.

The chair should check that the employee is satisfied with the arrangements for the meeting, and has received, read and understood all the necessary documents, including the grievance procedure, any report of the investigation, and any witness statements.

The employee should then be given the opportunity to explain their grievance. The chair should then take the employee through the investigation report and any evidence obtained.

There is usually no need for witnesses to attend the meeting as the matter can be dealt with by witness statements alone. However, if the employee requests that relevant witnesses attend the meeting, you should give consideration to this. The law does not require the chair to allow courtroom style cross-examination of witnesses and this type of adversarial approach is best avoided in dealing with a grievance. However, the employee should be allowed to raise points in response to anything a witness has said.

The employee’s representative (if any) can make statements and ask questions on their behalf. It is not appropriate for the representative to answer questions that have been put to the employee directly, although they may confer privately with them before any reply is given.

Regard should be had to the fact that the employee and any witnesses may be under significant stress during the meeting, and therefore may become visibly distressed and/or aggressive. The chair should be sensitive to this and, if necessary, make sensible use of adjournments for “time out” and to allow the individuals concerned to regain their composure.

At the end of the meeting, the chair should summarise the information put forward by both the employee and the investigation and request any necessary clarification from the employee.

Adjourning the Grievance Meeting

When all parties have explained their position and there are no further questions, the meeting should then be adjourned for the chair to consider what the employee has said. Issues that have been raised by the employee during the meeting may require further investigation and witnesses may need to be re-interviewed if they were not at the meeting. If new information comes to light, this should be given to the employee in writing, with sufficient time to consider it before the meeting is reconvened, at which stage they should be given a chance to respond to it.

Even if the chair has an idea as to the appropriate decision at the end of the meeting, it is always good practice to adjourn in any event to take time for consideration. This makes it less likely the matter will be seen to have been pre-judged.

Obviously, the length of any adjournment will depend on the complexity of the issues to be considered and whether further investigation is needed. It is helpful to give the employee an indication of how long it is likely to be before the meeting is reconvened. If the adjournment is only for a short period, the chair may wish to leave the employee in the meeting room while they consider their decision. However, in most cases it is sensible to adjourn at least until the following day.

The Decision

Once the chair has reached a decision, the meeting should ideally be reconvened and the action you have decided to take to resolve the grievance should be explained to the employee. While the decision must be given in writing in any event, it is usually better first done face-to-face and then confirmed in writing.

In some cases, a grievance investigation will result in disciplinary action being taken against another employee. If this is the case, you should not disclose this information to the employee as this could be a breach of the employer’s duty of trust and confidence to the employee to be disciplined. You should simply reassure the employee that appropriate action will be taken as a result of their grievance.

The employee should be advised of the fact that they have a right to appeal if they are not happy with the original decision. Instructions on how to appeal should be provided, including the name of the person to whom the appeal must be submitted and the timescale for appeal. Five working days is generally considered reasonable but there is no specific time limit in the Acas Code of Practice, so you may wish to take legal advice before rejecting an appeal as being out of time.

Grievance Appeals

So far as possible, any appeal should be heard or chaired by someone who has not been previously involved. Ideally, they should be more senior than the chair of the grievance meeting and, where possible, outside their direct reporting line.

The manager conducting the appeal should have access to the evidence compiled during the investigation and copies of the notes from the grievance meeting. However, they should not confer with the chair of the grievance meeting before the appeal meeting, as this may lead to a biased view being taken before the employee has presented their arguments.

There is no set format for the appeal, provided the employee is allowed adequate opportunity to present their arguments. The chair should aim to be as impartial as possible. If the original meeting was procedurally flawed, the grievance raised a particularly serious issue, or the grievance could result in disciplinary action against another employee, it may be appropriate for the appeal to be conducted as a full rehearing of all the evidence. In other cases, it may be acceptable to simply review the original decision based on the paperwork and any representations the employee may make.

Employees have the same right to be accompanied at an appeal meeting as at a grievance meeting.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on how to deal with a grievance appropriately to maintain good employee relations and to try to avoid costly and time-consuming tribunal claims. If you need assistance or have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Calculating Holiday Entitlement and Holiday Pay for Atypical Workers

Posted on 18 August 202230 May 2023 by @deliver_els

Following the much awaited Supreme Court decision in the Harpur Trust v Brazel holiday pay case, we consider the implications for calculating holiday entitlement and pay for atypical workers.

Harpur Trust v Brazel Holiday Pay Decision

Back at the beginning of this month we announced the Supreme Court decision in the Harpur Trust v Brazel holiday pay case, which upheld the decision of the Court of Appeal ruling that the percentage method (12.07%) for calculating holiday pay was unlawful.

Whilst the Supreme Court ruling may have major implications for thousands of employers, changing the way holiday pay should be calculated for staff working irregular hours on permanent contracts, it has created confusion about the way employers should calculate statutory holiday entitlement.

In Britain, holiday rights are set out in the Working Time Regulations 1998 (WTR 1998) and a worker’s statutory holiday entitlement is treated separately to their entitlement to statutory holiday pay.

Holiday Rights Under the Working Time Regulations 1998 (WTR 1998)

The main statutory rules on holiday rights are contained in the WTR 1998, which implement the Working Time Directive (2003/88/EC) (WTD). Article 7 of the WTD provides that each member state must ensure that every worker is entitled to paid annual leave of at least four weeks, with the conditions for entitlement to such leave being set by national legislation or practice.

Statutory Holiday Entitlement

Regulations 13 and 13A of the WTR 1998 set out the basic right to annual leave as follows:

A worker is entitled to 5.6 weeks’ annual leave in each leave year. This is equivalent to 28 days for those who work five days a week). This is made up of the right under the WTD to a minimum of four weeks’ annual leave (20 days for full-time employees) each year (transposed into national law by regulation 13(1) of the WTR 1998).
The domestic right to an additional 1.6 weeks’ annual leave (8 days for full time employees) each year, which represents the number of public holidays in England and Wales in a year. However, there is no need to use these days on public holidays (regulation 13A, WTR 1998).
A worker cannot be entitled to more than 28 days’ statutory leave in a single leave year (regulation 13A(3)).
A part-time worker is entitled to 28 days’ holiday reduced pro rata, according to the number of days they work each week. This can still be expressed as 5.6 weeks’ leave.
No minimum period of continuous service is required to qualify for statutory annual leave.
A worker whose employment begins part way through a leave year has a pro rata statutory holiday entitlement for that year.

Calculating Statutory Holiday Entitlement

The ruling in the Harpur Trust v Brazel case made clear that a worker on a permanent contract and engaged for a whole year has an entitlement to 5.6 weeks holiday, so all workers who do not have regular working hours.

However, the WTR do not set out how to convert this into entitlement in days or hours for workers with irregular hours. The latest government guidance suggests that holiday entitlement for workers who do not have a regular working pattern should be kept in weeks opposed to hours or days as this will make it easier to manage.

In consideration of this, employers may wish to calculate average days or hours worked each week based on a representative reference period, although the Regulations do not expressly provide for this. For example, and using a 12-week reference period, if an employee works a total of 48 hours on a variety of days and hours, their average working week would equate to 4 days per week meaning a week’s leave for that worker would equate to 4 days.

For people with a fixed working pattern involving a set number of days of equal length and those contracted to work a set number of hours in a period of time, over days of different lengths, the methods used to calculate holiday entitlement remain unchanged following the ruling in Harpar Trust v Brazel.

Calculating Statutory Holiday Pay

Regulation 16 of WTR 1998 sets out provisions for what workers are entitled to be paid during statutory annual leave at a rate of a week’s pay for each week of leave, calculated in accordance with the complicated “week’s pay” rules contained in sections 221 to 224 of the Employment Rights Act 1996 (ERA 1996).

Before the judgment in the Harpur Trust v Brazel case, many employers opted to use the percentage method, which capped a worker’s holiday pay at 12.07% of the hours they worked. This was calculated on the basis that a standard working year is 46.4 weeks and 5.6 weeks of the year would be 12.07% and this method was much easier to use than the more complicated Calendar Year Method.

However, following the ruling in the Harpur Trust v Brazel case, employers should now consider using the Calendar Year Method instead, as defined in the WTRs and which states that a worker’s entitlement to holiday pay is one week’s pay for each week of leave.

Once an employer has established what constitutes a weeks’ holiday for a worker who doesn’t have regular working hours (see Calculating Statutory Holiday Entitlement above), they will be able to correctly calculate how much holiday pay the worker is entitled to using the Calendar Year Method.

To do so, they should calculate the worker’s average weekly earnings over the previous 52-week period, ignoring weeks where the worker hasn’t earned anything, and going back up to a maximum of two years if necessary to establish the relevant 52 weeks’ pay information. In circumstances where a worker hasn’t been with the employer for more than 52 weeks, the employer can take an average based on the time they have been working.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations in respect holiday entitlement and pay to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Zero Hours Contracts and Worker Status Reforms Stuck in the Mire

Posted on 12 August 202231 May 2023 by @deliver_els

There appears to have been very little movement on zero hours contracts and worker status reforms despite various consultations, published reviews, policy papers and the mention of a new Employment Bill in the 2019 Queen’s Speech.

The Good Work Plan

On 17 December 2018, the government published its policy paper, the Good Work Plan. This set out what the government described as “the biggest package of workplace reforms for over 20 years”. It built on the response given by the government to the Taylor Review in February 2018 and the government’s strategy was set out in three main themes:

fair and decent work;
clarity for employers and workers; and
fairer enforcement.

To help UK Employers prepare, we summarised the key aspects of The Good Work Plan that came into effect from 6 April 2020 – What UK Employers Need to Know About the Good Work Plan

Zero Hours Contracts Reform

Also included in The Good Work Plan were several commitments specifically relating to zero hours contracts including a right for those on zero-hours or other flexible contracts to request a more stable and predictable contract and making it easier for casual staff to establish continuity of employment.

In its Spring 2022 Labour Market Outlook survey of employers, the CIPD added several questions to the survey, specifically relating to the use of zero hours contracts, and on 11 August 2022 it published a new report titled Zero-hours contracts: Evolution and current status. The report, which suggests that the number of workers engaged on zero hours contracts is small, accounting for about 3% of total employment, and has changed little since 2015, reflects on how zero hours contracts are used and considers their benefits and drawbacks for employers and workers.

The report concludes by making four recommendations:

Introduce a right for variable hours workers to request a more stable contract or working arrangement after they have been employed for six months.
Create a statutory code of practice on the responsible management of zero hours workers, including a requirement to pay compensation if workers’ shifts are cancelled at short notice.
Improve labour market enforcement, including through the creation of a single enforcement body and a stronger focus on supporting employer compliance.
Abolish worker status to help clarify and enhance employment rights for zero hours workers and more widely.

Employment Status Reform

Employment status was the subject of a standalone consultation in February 2018 and was also one of the key areas looked at in the Taylor Review. The Taylor Review proposed that the definition of “worker” needed to be clearer and more consistent, and that workers who were not employees should be renamed in the legislation as “dependent contractors”. It also proposed that there should be less emphasis on personal service, and more emphasis on control, in defining the relationship between an employer and a dependent contractor. This is because of concern that employers are putting a right of substitution into contracts in order to defeat arguments over worker status.

A commitment to refine employment status tests and for an online status tool to be developed were included in the government’s policy paper, The Good Work Plan, and the government suggested that it would “legislate to improve the clarity of the employment status tests, reflecting the reality of modern working relationships”.

However, the government response to the standalone consultation was not published until July 2022, and when it finally appeared it had very little to say about how it intended to produce the clarity of the employment status tests and it suggested that the benefits of creating a new system would be outweighed by the risks associated with legislative reform.

In July 2022, the government confirmed that it would not be reforming legislation in this area or aligning the employment law and tax status tests (there is no third category of “worker” for tax purposes). It instead published new guidance designed to improve clarity around employment status, which comprises three parts:

Employment status and employment rights: guidance for HR professionals, legal professionals and other groups (Detailed status guidance).

Employment status and rights: support for individuals (Guidance for individuals).

Employment status and rights: checklist for employers and other engagers (Guidance for employers).

The guidance is non-statutory and does not change the legal position. The introduction to the detailed status guidance emphasises that only a court or tribunal can make a final decision on employment status for employment rights purposes.

The Employment Bill

The recommendations in the CIPD report mirror those that were previously set out in previous reviews and the Good Work Plan in 2018, and it was expected that the much-awaited Employment Bill announced in the Queen’s Speech in December 2019 would see many of the recommendations implemented.

On 23 March 2021 the government confirmed that the Employment Bill would not be introduced in that parliamentary session and that it would be introduced when parliamentary time allows. There was no mention of the Employment Bill in the two subsequent Queen’s Speeches (May 2021 and May 2022) and no timeframe for when the Bill may be introduced has been provided.

On 14 June 2022, Lord Callanan, Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (BEIS), reconfirmed that the Employment Bill will be delivered “when parliamentary time allows”, and suggested that the government is considering alternative options for delivering its manifesto commitments outside of the anticipated Employment Bill.

Whether the government finds time to move forward with its Employment Bill remains to be seen but, in the meantime, the unresolved issues surrounding zero hours contracts and employment status will continue to present challenges for employers and workers alike and resolving disputes in these areas may ultimately be up to the courts and tribunals.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers to ensure compliance with a broad range of employment law issues. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Agencies Allowed to Supply Temporary Workers to Cover Striking Workers

Posted on 9 August 202230 May 2023 by @deliver_els

New UK regulations allow Agencies and Employment Businesses to supply temporary workers to cover workers taking industrial action.

Revocation of Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003

On 21 July 2022, the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852) (the Regulations) and the Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 (SI 2022/699) (the Order) and came into force in Great Britain.

The 2022 Regulations revoke regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) which previously prevented an agency or employment business from supplying temporary workers to perform duties normally performed by a worker who is on strike or taking official industrial action, or the duties normally performed by any other worker who has been assigned to cover a striking worker.

The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022

The 2022 Order amends section 22(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 to increase the limits on the maximum damages award which may be made against a trade union where industrial action is found to be unlawful. With effect from 21 July 2022, the limits are increased as follows:

Less than 5,000 members: £40,000 (previously £10,000).
5,000 to 24,999 members: £200,000 (previously £50,000).
25,000 to 99,999 members: £500,000 (previously £125,000).
100,000 members or more: £1,000,000 (previously £250,000).

The new limits do not apply to any tort proceedings which relate to an act that began or occurred before 21 July 2022. The explanatory note states that the increases take into account RPI changes since the limits were set in the Employment Act 1982.

The trade union Unison has indicated that it will seek judicial review of the Regulations.

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Women and Equalities Committee Calls for Menopause to be a Protected Characteristic

Posted on 5 August 202231 May 2023 by @deliver_els

Despite the calls from various charities and a recently published report from the House of Commons Women and Equalities Committee (WEC), legislative reform looks unlikely.

A recent survey undertaken by the Fawcett Society, a charity campaigning for gender equality and women’s rights, which was commissioned by Channel 4 for use in its documentary ‘Sex, Myths and the Menopause’, found that a majority of women (77%) find at least one menopause symptom ‘very difficult’, while 44% of women experience three or more symptoms that are severe.

The House of Commons Women and Equalities Committee (WEC) Report

On 28 July 2022, the House of Commons Women and Equalities Committee (WEC) published a report, Menopause and the workplace that emphasises there is much that employers should do to help employees, noting the risk of discrimination claims and reputational damage. Solutions include practical adjustments, additional flexibility, and fostering greater respect and understanding of the menopause.

The WEC report calls on the UK government to appoint a Menopause Ambassador to champion good practice, produce model menopause policies and trial specific menopause leave with a large public sector employer. The model policies should include as a minimum: how to request reasonable adjustments and other support, advice on flexible working, sick leave for menopause symptoms, and provisions for education, training and building a supportive culture.

While not supportive of mandatory menopause policies, the WEC report expresses disappointment that the Employment Bill has still not materialised and urges the government to bring forward legislation before the end of the current Parliament to make the right to request flexible working a day-one right. It also calls on the Health and Safety Executive and the Equality and Human Rights Commission to provide guidance on menopause within the next six months.

Noting that the current law does not specifically protect menopausal women, the report considers it unsatisfactory that they must frequently present themselves as suffering from a disability to make an effective claim. It calls on the government to “immediately” commence section 14 of the Equality Act 2010 (EqA 2010) which would allow dual discrimination claims, and to consult within six months on making menopause a protected characteristic, including a duty to provide reasonable adjustments for menopausal employees.

The UK Government Response

The UK government has published its response to the independent report, Menopause and the workplace: how to enable fulfilling working lives on 18 July 2022 and the First Women’s Health Strategy for England on 20 July 2022, and in doing so has confirmed that it does not intend to make any changes to the EqA 2010, but it has appointed a Women’s Health Ambassador for England who will sit on the newly established UK Menopause Taskforce.

Menopause and UK Discrimination Laws

Given the UK government’s response, it seems unlikely that the WEC’s calls for legislative reform will be taken forward but considering that the findings of the Channel 4 commissioned survey found that 44% of menopausal women in employment say their ability to work has been affected by their symptoms and 8 in 10 menopausal women say their workplace has no basic support in place for them, it seems clear that many employers will need to revisit their existing procedures for supporting staff affected by the menopause to avoid potentially costly discrimination claims.

In some cases, the menopause could be considered a disability under existing UK discrimination law and if someone is disabled, their employer must make reasonable adjustments to reduce or remove any disadvantages they might experience because of it.

Although the menopause is not currently a specific protected characteristic under the Equality Act 2010, an employee or worker who is put at a disadvantage and treated less favourably because of their menopause symptoms could potentially have grounds for a discrimination claim if the less favourable treatment is related to a protected characteristic, such as age, disability, or sex.

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UK Data Protection Reforms via the Data Protection and Digital Information Bill

Posted on 4 August 202231 May 2023 by @deliver_els

Since its introduction in May 2018, the GDPR (General Data Protection Regulations) have been a complex and burdensome piece of legislation that many UK employers have struggled with but with the freedoms afforded to the UK in a post-Brexit environment, the UK Government has seized the opportunity to update and simplify the UK GDPR and Data Protection Act 2018 (DPA 2018) with a view to reducing burdens on organisations, while still maintaining high data protection standards.

The Data Protection and Digital Information Bill (Bill 143 2022-23)

On 18 July 2022, the much-anticipated Data Protection and Digital Information Bill (Bill 143 2022-23) was introduced into Parliament, following publication of the government’s response to its consultation, Data: a new direction.

The Bill aims to introduce more flexibility and makes provision for a variety of measures relating to personal data and other information, including digital information.

There are numerous proposed changes, which include:

Reforming the ICO.
Changes to PECR, relating to cookie rules, unsolicited direct marketing and communications security (for example, network traffic and location data).
Clarification of the rules on international transfers and cross-border flows of personal data.
Establishing a framework for the provision of digital verification services.
Changes to Part 3 (law enforcement) and Part 4 (processing by the intelligence services) of the Data Protection Act 2018.
Changes to police use of biometrics.

Explanatory notes (Bill 143 EN 2022 23) were also introduced into Parliament, although they do not form part of the Bill and have not been endorsed by Parliament.

The second reading is scheduled to take place on 5 September and further stages will be announced on Parliament’s Stages webpage.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations in respect data protection to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Percentage Method for Calculating Holiday Pay Ruled Unlawful

Posted on 3 August 202231 May 2023 by @deliver_els

The Supreme Court decision in Harpur Trust v Brazel has major implications for thousands of employers, changing the way holiday pay is calculated for staff who work irregular hours on permanent contracts.

On 20 July 2022, the Supreme Court delivered its judgment in Harpur Trust v Brazel, rejecting Harpur’s appeal and upholding the decision of the Court of Appeal ruling that the percentage method for calculating holiday pay was unlawful.

Background in the Harpur Trust v Brazel Holiday Pay Case

Mrs Brazel is a visiting music teacher who continues to work at a school run by the Harpur Trust (Harpur). She is employed by Harpur under a permanent contract on a zero-hour basis. Harpur is not obliged to provide a fixed minimum amount of work and she is paid only for the amount of work carried out and Mrs Brazel works mainly during school term-time.

The length of the school terms varies from year to year but is between 32 and 35 weeks. She is a part-time worker in two senses, firstly, that she does not work a full working week and, secondly, that for large parts of the year (during school holidays) she does not work for Harpur at all. It is only this second type of part-time working with which this case is concerned.

She is entitled to 5.6 weeks’ paid annual leave (both under her contract and statute), which she is required to take during school holidays. As the school holidays are far longer than this, no particular weeks are designated as statutory holiday, but by agreement Harpur makes three equal payments in respect of holiday at the end of each term of 12.07% of her usual pay; a method referred to as the ‘Percentage Method’.

Mrs Brazel submitted an employment tribunal claim, asserting that the 12.07% approach bears no relation to the calculation required by the WTR 1998.

The Employment Tribunal (ET) Decision

Initially, the Employment Tribunal dismissed Mrs Brazel’s claims. It found that there had been no unlawful deduction of wages as a result of the application of the 12.07% calculation. It held that a principle of pro rating should apply, and that the statutory scheme should be read down for part-time workers who worked fewer than 46.4 weeks per year so that payment was capped at 12.07% of annualised hours. The tribunal found that words could be read into regulation 16 of the WTR 1998 to that effect.

Employment Appeal Tribunal (EAT) and Court of Appeal Decisions

Mrs Brazel appealed to the EAT in relation to the correct calculation of holiday pay only. The EAT upheld the appeal, finding that the tribunal had erred in capping her holiday pay at 12.07% of annual earnings. The EAT held that there was no requirement in the WTR to pro rate holiday pay for part-time employees to ensure that full-time employees were not treated less favourably. The tribunal had overlooked the principle that part-time workers were not to be treated less favourably than full-time workers and that there was, as yet no principle to the opposite effect. It was emphasised that the wording in the Working Time Regulations 1998 was clear. This is that a worker on a permanent contract and engaged for a whole year has an entitlement to 5.6 weeks’ holiday.

Harpur appealed this decision to the Court of Appeal. They believed that they must reduce their teacher’s holiday entitlement so these workers wouldn’t be entitled to holiday pay that may exceed that of full-time staff. The Court of Appeal dismissed their appeal, and the case was taken to the Supreme Court.

The Supreme Court Decision

The Supreme Court agreed with the Court of Appeal and dismissed the appeal unanimously.

Nowhere in EU or UK law did it state that holiday pay should be pro-rated for those who do not work every week of the year. It did not matter that this would give more holiday pay to these workers than those working all year.

The Supreme Court reaffirmed that all workers are entitled to 5.6 weeks’ paid annual leave per year and that the correct method of calculating holiday pay for “part-year’ workers should be based on average pay, ignoring weeks where an individual does not earn anything. This is the case, even if this means individuals receive a greater proportion of holiday pay than full-time workers. It was found that there is no legislative provision which means that part-timers cannot be better off than comparable full-time workers.

Implications for Employers

This case is important for the leave entitlement of every worker in the UK with no normal working hours. In essence, the decision means that all zero-hours employees who do not work a full year must have their holiday calculated in this way and not by the application of the 12.07% formula.

Although this particular case concerned a worker who was permanently engaged to work only part of the year and was therefore limited only to part-year workers on permanent contracts, it is likely that other categories of worker may also try to rely on the decision and that similar claims from these types of workers will follow.

Considerations For Employers

Employers who currently use the 12.07% approach to pay holiday to their zero hours staff with permanent contracts should analyse their potential exposure and consider their options. It is clear that holiday pay should be calculated by assessing a week’s pay and multiplying that by 5.6.

How the 5.6 weeks’ holiday entitlement itself should be calculated for such workers (particularly those who do not work term-time only and who take enough leave to satisfy the WTR 1998 in any event), is still not clear. Employers will have to take a pragmatic approach and it is expected that many will continue to use the 12.07% approach to calculating the holiday entitlement until further case law provides more clarity.