ABG Employment Newsletter – September 2016

Injury to feelings: tribunals have power to increase Vento bands in line with inflation

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal’s decision to award £14,000 injury to feelings to a young woman who was forced out of her job because of sexual harassment from her employer. Even if the EAT thought the amount to be on the high side, it refused to interfere as the award was not “manifestly excessive” and was correctly placed in the middle band under the Vento guidelines. In making its ruling, the EAT commented that employment tribunals are entitled to take account of the effect of inflation on the Vento bands, without waiting for further guidance from the EAT or higher courts.

Tribunal should not have struck out whistleblowing claims

The Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s decision to strike out unlawful detriment claims based on protected disclosures. It was not possible to say that the claims had “no reasonable prospects” where there was unexplained delay by the employer in providing references, and where there was a question over whether the employer had been obstructive and uncooperative with the employee over agreeing a reference. These were factual disputes that required a hearing.

The tribunal had also been wrong to strike out the claims based on the employee’s unreasonable conduct of the case, in persistently raising hopeless points and failing to fully particularise the points that had some hope. In order for a tribunal to strike out for unreasonable conduct, it must decide that a fair trial is no longer possible, and that it is proportionate to strike the claim out. There was no basis in this case for the tribunal’s conclusion that a fair trial was impossible and its assumption that the witnesses would “probably” not be able to remember the events in question was entirely unsupported. The tribunal had also not considered alternative sanctions such as making a deposit order. The case was remitted.

Employment tribunal finds voluntary overtime should have been included in calculation of statutory holiday pay

Albeit a first instance decision (which is not binding authority as such) an Employment Tribunal has held that:-

 In the calculation of Statutory Holiday Pay (Regulation 13 leave – first 4 weeks) the following should be included:-

  • out of hours standby payment;
  •  call-out allowances;
  • taxable element of travel allowances; and
  • regular additional voluntary overtime.

Regulation 13A leave – which equates to Bank Holidays in the UK – is calculated by including only regular pay and regular contractual overtime.

Contractual annual leave, that is leave over and above and above Regulation 13 leave and Regulation 13A leave is also calculated by including regular pay and regular contractual overtime.

Holiday leave is accrued in the order of:-

  • Regulation 13 leave first;
  • followed by Regulation 13A leave second.
  • [Presumably, contractual annual leave follows thirdly.]

So, it follows that a two-tier calculation is suggested. In another case, it has also been suggested that, where appropriate, an average of the last 12 weeks’ pay should be used to arrive at the calculation of a week’s pay for holiday pay calculation purposes.

Gender pay gap reporting regulations delayed

The Government Equalities Office (GEO) has confirmed that the publication of the final Equality Act 2010 (Gender Pay Gap Information) Regulations 2016 has been delayed.

In an email to Shoosmiths solicitors on 25 July 2016, the GEO said that the response to the consultation on the draft regulations would be published “in due course”. However, it is understood that the final regulations will not be included with the consultation response.

It was originally expected that the final regulations would be published this summer and come into force on 1 October 2016. However, the GEO now envisages that the regulations will be laid before Parliament in the autumn, and will commence in April 2017. If this is the case, it is likely that the first “relevant date” under the regulations would remain at 30 April 2017 as previously announced, meaning that the first gender pay gap reports will be due by the end of April 2018.

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 The comments in this note are of a general nature only. Full advice should be sought on any specific problems or issues.

Christopher Gigg [email protected] +44 (0)115 934 3310

Kathryn Meir [email protected] +44 (0)115 934 3308