As we start the summer holidays, the Supreme Court’s judgment on holiday pay is a timely reminder of the complexities of calculating holiday pay for certain workers.

Holiday pay has been a hot topic in UK employment law over recent years, with the latest Supreme Court decision in Harpur Trust v Brazel addressing the calculation of pay for workers who work irregular hours for part of the year on permanent contracts. Dismissing the appeal, the Supreme Court agreed with the earlier decisions that holiday pay should not be pro-rated, but instead calculated by looking at average earnings over the relevant reference period prior to leave being taken, even if it meant that the worker received proportionately more paid holiday than a full time worker.

Continue Reading Holiday Pay: the latest instalment

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements

In the long-running case of Asda Stores v Brierley and others, the Supreme Court ruled that, for the purposes of an equal pay claim, a group of female retail store employees could rely upon the work of mainly male depot distribution employees for comparison even though they are located at different sites.

Generally speaking, an equal pay claim can only progress if the claimant can establish a disparity between their contractual terms and those of an appropriate comparator of the opposite sex performing equal work at either:

  • the same establishment; or
  • a different establishment where “common terms” apply either generally or between the individual and their comparator.


Continue Reading Equal pay: Comparators in different establishments

2021 marks the start of a new era for the UK, the Brexit transition period having ended at 11pm on 31 December 2020. After endless rounds of negotiation, the parties reached a last-minute agreement over the ongoing relationship between the UK and EU, and the European Union (Future Relationship) Act 2020 (which gives legal effect in the UK to the agreements reached) received royal assent on 30 December 2020. But what impact does this have on UK employment rights derived from the EU?

The short answer is that while Brexit provides the UK with some freedom to deviate from EU derived employment law, we should not expect to see any radical changes to UK employment laws or employment rights.

The Trade and Cooperation Agreement reached between the UK and EU incorporates level playing field commitments that seek to prevent either the UK or the EU gaining a competitive advantage in a variety of contexts. These include rights at work, namely fair working conditions, employment standards (including in respect of workplace health and safety), information and consultation rights and the restructuring of undertakings. The commitments given by both the UK and EU are intended to ensure that neither will weaken or reduce labour or social rights and standards below the levels in place at the end of the transition period where this affects trade or investment between the UK and EU, including by way of a failure to enforce those laws and standards.
Continue Reading Implications of Brexit for UK employment law

On March 23, 2020, in Comcast Corp. v. National Association of African American Owned Media, the Supreme Court resolved a circuit split on whether discrimination claims brought under section 1981 require “but-for” causation or whether they can be analyzed under Title VII’s “motivating factor” test. The Court confirmed “but-for” causation is required.

The plaintiff in the case, Entertainment Studios Network (ESN), is an African American-owned television network operator that sought to have Comcast carry its channels. Comcast refused, citing reasons such as lack of programming demand, bandwidth constraints, and a preference for other types of programming that ESN does not offer. ESN and the National Association of African American-Owned Media sued, alleging Comcast violated 42 U.S.C. section 1981, which guarantees “[a]ll persons…the same right…to make and enforce contracts…as is enjoyed by white citizens.”

On appeal from the district court’s dismissal of ESN’s complaint for failure to state a claim, the Ninth Circuit reversed, holding ESN was only required to plead that race played “some role” in Comcast’s decision-making process.
Continue Reading Supreme Court confirms race discrimination claims under section 1981 require “but-for” causation

On October 8, 2019, the Supreme Court will hear oral arguments in three landmark LGBTQ+ rights cases, which could broaden protections for the LGBTQ+ community by prohibiting employers from discriminating against employees based on their sexual orientation, transgender-status, or gender identity under federal law. Currently, conflicting federal cases and shifts in interpretation and policies at administrative agencies such as the Equal Employment Opportunity Commission and the Department of Justice have left employers without clear guidance on what is, or is not, protected at a federal level (separate and apart from state and local protections). In Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, since consolidated, the Court will consider whether the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, the Court will consider whether Title VII prohibits discrimination against transgender people. The cases are summarized below.

Altitude Express, Inc. v. Zarda / Bostock v. Clayton County, Georgia – factual background

Donald Zarda worked as a skydiving instructor for Altitude Express, Inc., responsible for taking clients on tandem skydives, strapped hip-to-hip and shoulder-to-shoulder to the client. In June 2010, while carrying out a tandem skydiving session with a young woman, Zarda stated he was gay in defense of a female client’s allegation that he touched her inappropriately. Altitude Express terminated Zarda’s employment on the grounds that he shared inappropriate information with clients regarding his personal life. After a three-judge panel ruled against Zarda, the Second Circuit, in an en banc decision, overturned the lower court, holding that discrimination based on sexual orientation violates Title VII.

Continue Reading Supreme Court poised to hear oral arguments in blockbuster LGBTQ+ workplace discrimination cases

In an eagerly awaited decision, the Supreme Court gave its judgment on the meaning of wording commonly used in non-compete post-termination restrictions and the possibility of severing such wording where it would otherwise render such a restriction unenforceable.

Background

Ms Tillman was the Joint Global Head of Financial Services of executive search and recruitment firm Egon Zehnder at the time she left its employment. Her employment contract included a noncompete post-termination restriction of six months’ duration. This noncompete post-termination restriction provided that Ms Tillman would not “directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses” of Egon Zehnder with which she had been materially concerned in the period of 12 months prior to her employment ending. This restriction became contentious and the subject of substantial litigation when Ms Tillman made known her intention to work for a competitor in apparent breach of the non-compete restriction.

Egon Zehnder brought proceedings to enforce the non-competition covenant and successfully obtained an injunction against Ms Tillman. Ms Tillman appealed this decision, arguing, among other things, that the covenant was void on the basis that it was too widely drafted. In particular, Ms Tillman argued that the use of the words “interested in” prevented her from holding even a minority shareholding in a competitor and the restriction was therefore void as an unenforceable restraint of trade. The Court of Appeal agreed and set aside the injunction. Egon Zehnder then appealed to the Supreme Court.

Continue Reading Positive news for employers wishing to enforce post-termination restrictions

The Supreme Court has delivered its ruling on the landmark Pimlico Plumbers case, upholding previous decisions that an ostensibly ‘self employed’ plumber was in fact properly classified as a ‘worker’ with valuable employment rights under UK law (including discrimination protection and holiday pay). The case has been closely monitored because of its impact on organisations