September Update

The EAT has decided voluntary overtime should be included in holiday pay, and employment status is to be considered by the Supreme Court

Case law

Pimlico Plumbers has been given permission to take its employment status case to the Supreme Court. In February, the Court of Appeal decided in the case Pimlico Plumbers v Smith, that one of the firm’s former plumbers was a worker, and not self-employed as the company maintained, and could bring a disability discrimination claim (the plumber had been dismissed following a heart attack).

Recent tribunal findings of ‘worker’ status for non-traditional employment relationships are making it increasingly difficult for businesses to determine the employment status of their own workforces.  It is hoped that there will be clearer guidance on the issue from the Supreme Court. The case is likely to be heard in 2018.

In the latest holiday pay case, Dudley Metropolitan Borough Council v Willetts, the EAT has held that an employment tribunal was right to find that the voluntary overtime of a social housing maintenance team, for which the employees could “drop on and off the rotas to suit themselves”, should be included as ‘normal pay’ when calculating holiday payments.

The decision could be appealed, but bearing in mind recent case law, if voluntary overtime payments are regularly made to employees, they should probably be included for the purposes of calculating holiday pay.

Another case, Agoreyo v London Borough of Lambeth, confirmed that suspending an employee is not a ‘neutral act’ and that employers should avoid resorting to it as a ‘knee-jerk reaction’. The case involved a primary school teacher suspended following incidents in which she had allegedly used unreasonable force when dealing with difficult behaviour from two pupils. She had not been asked for her response to the allegations and there was no evidence the employer had considered any alternatives to suspension. The High Court decided this was a breach of ‘trust and confidence’, a term implied in all employment contracts.

Free childcare

The government is doubling the number of free childcare hours available for working families with children between three and four year olds. From 1 September, families in England where both parents are (or a lone parent is) earning 16 hours' pay at the appropriate national minimum wage level, but below £100,000 a year, will be entitled to 30 hours instead of 15 hours free childcare a week, during term time. However, reports are suggesting that the scheme is underfunded and, instead of increasing provision, could actually lead nurseries to close because they cannot afford to pay for the extra hours.

« Back to News