Articles | Employment bulletin December 2015

This month we look at how to calculate holiday entitlement after a change in hours and the switching burden of proof in discrimination claims.

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David Clay

David Clay

Merry Christmas!

and a Happy New Year

Merry Christmas!

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With Christmas just around the corner, we wish you a relaxing and enjoyable festive period free from employment headaches!  However, if you do have any emergencies to deal with then one of the team will be here to help.

As it’s a time of year when many of us are looking forward to the holidays and having a well-earned break, we didn’t want to give you too much to digest – to that end we hope you appreciate this month’s slimmed-down version of the employment bulletin.

Merry Christmas
from Ian, Louise, Katie and David

FSP Employment Seminar

19 January 2016

 

FSP Employment Seminar

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We’re kicking off 2016 with our popular New Year seminar focusing on recent and forthcoming changes in employment law.  Ian Machray will provide practical guidance on what the changes mean for employers and HR professionals and will identify key action points for the forthcoming year.  Read more to book your place at this event, which is held in conjunction with the CIPD.

The past is in the past

Holiday entitlement when working hours change

The past is in the past

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Under UK and EU law, all workers are entitled to a minimum of 5.6 weeks’ paid holiday per year.  For full-time workers this equates to 28 days per year, while part-time workers should receive the same holiday pro-rata.  When a worker changes their normal working pattern, calculating holiday entitlement can be problematic.  A recent decision of the European Court of Justice (ECJ) provides employers with some helpful high-level guidance.
 
The case in question concerned Ms Greenfield, a care worker.   Ms Greenfield’s holiday year began on 15 June 2012 and in the following July she took seven days’ paid holiday.  She had in the period immediately preceding the holiday only worked one day per week.  Accordingly, her 7 day holiday allowed her to take 7 weeks’ leave.  From August Ms Greenfield increased her working hours to 12 days on and two days off.  She then asked to take a week’s paid holiday in November.  Her request was refused on the basis that her time off in July had exhausted her entitlement to her 5.6 weeks’ paid holiday.

Ms Greenfield left her employer in May 2013 and brought a claim for payment in lieu of accrued but untaken holiday.  She argued that her employer should have recalculated her holiday entitlement for the whole of the 2012/13 holiday year to reflect her increased hours.
 
The ECJ found that where there is a change in working hours, an employer is not obliged to retrospectively recalculate any entitlement to statutory holiday already accrued (regardless of whether or not that accrued holiday has been taken).  It held that an employer does have a duty to recalculate a worker’s holiday entitlement, but only from the point that the worker’s hours increase.  Holiday taken in excess of the holiday entitlement as it was prior to the change in hours can be deducted from holiday accrued under the new working pattern.

The decision in this case complements a previous ECJ ruling that a move from full-time to part-time work should not affect the amount of holiday that a worker has already accrued.  While there is still a catalogue of issues to be clarified regarding holiday pay, employers can now explain to their workers the basic principle that a change in working hours will not have a retrospective impact on the total number of holidays already accrued.

Where’s the evidence?

Teacher fails burden of proof test

Where’s the evidence?

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A claim for indirect discrimination may arise where an employer's practices, policies or procedures disadvantage a particular group and the employee personally.  If an employee can establish this then the burden of proof shifts to the employer to objectively justify its actions.  The application of this burden of proof test was crucial in determining the outcome of a recent case before the Employment Appeal Tribunal (EAT).

The case involved Ms Dippenaar, a 39 year-old teacher with 13 years’ experience.  Since joining an Education Trust in 2006, Ms Dippenaar’s teaching was assessed at a high standard and her students performed well.  However immediately after the appointment of a new Head of Faculty in 2012, Ms Dippenaar’s teaching was heavily criticised and she was subjected to a capability procedure without an adequate explanation.

Ms Dippenaar resigned and brought claims for constructive dismissal and indirect age discrimination.  She claimed the Trust operated a practice of replacing more experienced teachers with less experienced teachers to save costs.

The EAT upheld Ms Dippenaar’s constructive dismissal claim, but dismissed her indirect age discrimination claim.  Although she produced a set of statistics noting the age of various leavers and joiners, the EAT found limited evidence that the Trust had adopted a practice of replacing more experienced teachers with less experienced ones.  Ms Dippenaar was unable to provide sufficient evidence of repeated conduct to establish a practice for the purposes of the indirect discrimination test.  Even if there was such a practice, the EAT was not persuaded that teachers in Ms Dippenaar’s age group had suffered a similar and particular disadvantage when compared with younger teachers.  Ms Dippenaar had failed to establish the necessary facts to reverse the burden of proof and the Trust’s fragile position on justification was therefore not exposed.

While the case confirms that employees must present convincing evidence in order to discharge the burden of proof, employers should bear in mind that a Tribunal’s view of the facts and evidence can be difficult to predict (and could depend on witness credibility).  Recording non-discriminatory reasons for key decisions, maintaining up-to-date staff policies and providing appropriate training remain the best approach for limiting business exposure to potentially costly discrimination claims.