UK: ECJ cases raise doubts over the inclusion of regular voluntary overtime in holiday pay calculations and over record-keeping requirements

Comments made in an ECJ judgment on a German working time case have raised doubts as to the correctness of the UK Employment Appeal Tribunal’s rulings that pay during the 4 weeks EU-derived statutory holiday must include an amount for voluntary overtime (if sufficiently regular and paid over a sufficient period). In Hein v Albert Holzkamm, the ECJ noted that remuneration for overtime of an “exceptional and unforeseeable nature” need not be included when calculating holiday pay, but that overtime pay should be included where a worker’s contract obliges them to work overtime “on a broadly regular and predictable basis and the corresponding pay constitutes a significant element of the total remuneration”. Domestic legislation does not need to be interpreted as giving the right that pay received for overtime work be taken into account unless these conditions are satisfied. Continue reading

Australia: Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) takes effect

On Monday 17 December 2018, the Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth) (Amending Regulation) was registered and took effect from 18 December 2018. The Amending Regulation amends the Fair Work Regulations 2009 (Cth). The Amending Regulation is intended to apply where an employee has mistakenly been classified as a casual employee and is claiming NES entitlements, even though they have received a casual loading in lieu of those entitlements. The purpose is to ensure double-dipping does not occur. Continue reading

UK: Government response to sexual harassment report: New statutory Code of Practice and more consultation

The Government has today published its response to the Women and Equalities Select Committee report published in July of this year (see our blog post here) on sexual harassment at work.  It has noted the lack of data and research on this issue, as highlighted by the Committee, and therefore, for the most part, its response is to consult and collect more data in order to identify the most effective interventions.  However, it has agreed with the Committee that a new statutory Code of Practice should be introduced, to be developed by the Equalities and Human Rights Commission (EHRC).

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UK: Government’s “Good Work Plan” sets out employment law reforms following the Taylor Review

The Government has today published its “vision for the future of the UK labour market”, the Good Work Plan, which builds on its earlier response to the Taylor Review (see our summary here) on the impact of digital platforms on modern working practices and the rights of workers.

This publication sets out what the Government describes as “ambitious” proposals for employment law reform, together with feedback from the four recent consultations on employment status, transparency, agency workers and enforcement.

The Government states that it has accepted the vast majority of the recommendations from the Taylor Review and proposes legislative changes “to ensure that workers can access fair and decent work, that both employers and workers have the clarity they need to understand their employment relationships, and that the enforcement system is fair and fit for purpose”.

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Australia: Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 receives royal assent

The Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018 passed both houses of Parliament on Thursday 6 December 2018 and also received royal assent on Tuesday 11 December 2018.

The Bill inserts a new entitlement in the National Employment Standards for all national system employees to five days of unpaid family and domestic violence leave within a 12 month period. The entitlement commenced common Wednesday 12 December 2018 (Commencement Date).  The Bill does not preclude employers applying their own additional domestic and family violence policies and practices (e.g. offering paid leave). Continue reading

UK: workers may be entitled to carry over statutory holiday if they have not been encouraged to take it

The ECJ has ruled that workers cannot be deprived of paid statutory holiday entitlement on the termination of employment or at the end of a particular reference period or authorised carry-over period, unless the employer has ensured “specifically and transparently” that the worker is actually given the opportunity to take the leave. This means encouraging workers, formally if necessary, to take their leave entitlement and informing them, accurately and in good time, that they will lose it if they don’t take it. The burden of proof will be on the employer to show that “it has exercised all due diligence” in order to enable the worker actually to take his entitlement; loss of entitlement will only be lawful if the worker deliberately declines to take their leave knowing the consequences. Continue reading

UK: Discrimination – tax treatment of compensation, zero hours claims, and equal pay comparators

  • In Pettigrew v HMRC the First Tier Tribunal has held that settlement payments made by reference to underpaid past earnings arising out of a claim of discrimination against part-time workers were fully taxable as employment income. The appellant referred to the earlier case of Mr A v Commissioners for HMRC where it was held that a settlement sum representing underpaid salary and bonuses due to racial discrimination was not taxable, a decision which HMRC did not appeal. However, the Tribunal in Pettigrew did not accept this – noting in particular that the Tribunal in Mr A were not referred to the correct legal authorities and in particular the principles in Kuehne + Nagel (that for a payment to be an emolument, employment need not be the sole cause but only sufficiently substantial) and Mairs v Haughey (that a payment will usually take its taxable character from the payment which it substitutes). Both Pettigrew and Mr A are only First Tier Tribunal decisions and so not binding, but the case is a firm indication that HMRC is now likely to seek to fully tax compensation for loss of earnings arising from discrimination during employment.

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UK: Disability discrimination – need to consider possible link between misconduct and an employee’s disability before deciding disciplinary action

When disciplining a disabled employee, employers need to consider carefully whether they should obtain medical evidence on any possible link between the employee’s actions and their disability.

The Court of Appeal has upheld a tribunal ruling that an employer was liable for discrimination arising from disability where it dismissed a teacher with cystic fibrosis for showing an 18-rated film to younger children, despite the employer having reasonably concluded on the evidence available that there was no connection between the employee’s misconduct and his disability (City of York Council v Grosset). The employee accepted that he had made an error of judgment but contended that this was due to the high levels of stress he was suffering, caused by the effect of increased work demands on his disability. The potential link had been mentioned by the employee, but the medical evidence available to the employer at the time of dismissal did not suggest a causal link.  However,  medical evidence available by the time of the tribunal hearing clearly established that link.

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Thailand: Respecting Workers’ Rights

Human rights continue to keep the pressure on Thailand’s fishing industry, as forced labour and exploitation claims get increasing exposure.

Human rights groups continue to report of coercive labour practices in Thailand, in particular, in the fishing industry. In 2015, the European Union (“EU”) raised a yellow flag on Thailand’s illegal, unreported and unregulated fishing problems.

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