What changes in employment law do employers in the property and construction industries need to be aware of this year? Sybille Steiner and Jo Moseley provide the answers.
• Sex discrimination: do employers have to enhance shared parental leave pay if they enhance maternity pay?
The Employment Appeal Tribunal (EAT) said that the employer did not directly discriminate against a male employee taking shared parental leave when it refused to enhance his pay even though it did enhance maternity pay: Ali v Capita Customer Management Ltd (24 January 2017).
However, could such a policy constitute indirect sex discrimination? In Hextall v Chief Constable of Leicestershire Police (UKEAT/0139/17/DA), the EAT indicated that it might do because fathers can take shared parental leave only if they want to care for their baby, whereas mothers have a choice about whether to take it.
Both decisions have been appealed to the Court of Appeal. The hearings will take place on 1 May.
Why is this important?
The government produced detailed technical guidance to employers, which stated that it was not necessary for employers to enhance shared parental pay even if they enhance maternity pay. Many employers have relied on this to justify differences in their family leave policies. The property and construction sector employs more men than women and may opt to remove enhanced maternity leave if they also have to enhance shared parental leave, to avoid their costs escalating.
• Working time breaks: does compensatory rest have to be provided if a worker cannot take a 20-minute uninterrupted break?
Adult workers must be given a 20-minute break after six hours work and must know, in advance, that they will not be interrupted. The EAT in Crawford v Network Rail Infrastructure Ltd (UKEAT/0316/16/BA) said that workers who are only able to take short breaks must be given compensatory rest – even if they can take several shorter breaks.
The Court of Appeal judgment is expected soon.
Why is this important?
This decision will affect many lone workers (such as security guards) in the property and construction industry who cannot decide, in advance, when they can take a break. If periods of “downtime” can be treated as statutory breaks, employers will not have to provide someone to cover breaks or provide compensatory leave.
• Holiday pay calculations for part-time staff: can organisations cap payments at 12.07%?
In Brazel v The Harpur Trust (UKEAT/0102/17/LA), the Court of Appeal will decide whether organisations can calculate holiday payments for part-time staff by using a fixed formula of 12.07% to annualised hours.
Ms Brazel worked term time only under a zero-hours contract, under which she was entitled to take 5.6 weeks’ paid holiday. To avoid overpaying her (compared with full-time employees), her holiday pay was capped at 12.07% of her annual hours.
The Court of Appeal will hear the case on 2 May.
Why is this important?
Many employers in the property and construction industry engage staff on zero‑hours contracts and these contracts often specify that paid holiday will accrue at a rate of 12.07% of the hours worked. That is generally OK, provided that the contracts don’t work out the rate of holiday pay by reference to this formula. Instead, holiday pay should be calculated by averaging the previous 12 weeks’ pay.
• Worker, employee or self-employed?
In Aslam v Uber [2018] EWCA Civ 2748, a number of drivers claim they are workers entitled to paid holiday and national minimum wage.
The Court of Appeal has rejected Uber’s appeal. It is expected to appeal to the Supreme Court.
Why is this important?
It is difficult to determine the employment status of some individuals, particularly those engaged under self-employed contracts, or working on a casual basis. The law has been interpreted in numerous cases, but the courts have not yet devised a single test that will conclusively point to the distinction in all cases.
Those employed in the property and construction industries are often engaged as self-employed contractors. The courts can override any agreement that does not reflect the reality of the working relationship, and if individuals are workers they must receive paid holiday and the national minimum wage. Workers who are incorrectly treated as self-employed contractors can recover unpaid holiday going back many years and amounting to thousands of pounds per worker.
• Discipline: is suspension a neutral act?
The Court of Appeal will decide whether suspending an employee is a neutral act that causes no detriment to an employee.
Agoreyo v London Borough of Lambeth [2017] EWHC 2019 (QB) concerned an experienced teacher, suspended as a “precautionary” measure, after she was accused of using excessive force to restrain two children in her class. The High Court said suspending her was a “knee-jerk” response and the employer had breached the implied duty of trust and confidence.
The Court of Appeal will hear the case on 29 January.
Why is this important?
Organisations often automatically suspend any member of staff suspected of serious misconduct without properly considering whether it is necessary to do so. Employers in the property and construction industry need to make sure their managers know when to take advice from HR.
• Disability discrimination: is it discriminatory to base an ill-health pension on part-time hours introduced as a reasonable adjustment?
In Williams v The Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65, the Supreme Court decided that a disabled employee who retired because of ill health aged 38 was not treated unfavourably because his final salary pension was calculated by reference to his actual working hours rather than the full-time hours he had previously worked.
Why is this important?
This decision will reassure organisations within the property and construction industries that still operate final salary pension schemes.
In summary, 2019 will see a host of new legislation or case law coming into play, and that’s even before we see how Brexit plays out and the implications of the way in which the UK will distance itself from Europe in terms of immigration policies. Employers and HR departments will need to keep a close eye on developments to make sure they keep well on track.
Sybille Steiner is a partner and Jo Moseley a PSL in the employment law team at Irwin Mitchell
