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Another decision has been handed down to clarify – or complicate – the position on which aspects of pay should be included when calculating an employee’s entitlement to holiday pay.

The Court of Appeal in Northern Ireland (“CA”) has held that voluntary overtime is not necessarily excluded from the calculation of holiday pay for the purposes of the Working Time Regulations 1998 (as derived under the EU Working Time Directive).

The case of Patterson v Castlereagh Borough Council held that it was a “question of fact” for each Tribunal to determine whether or not voluntary overtime was “normally” carried out by the employee. If so, it should be considered to be part of the employee’s “normal remuneration” and included when calculating holiday pay.

The case was remitted to the Tribunal to hear further evidence of the overtime actually worked by the employee within a suitable reference period. Once this is determined, the Tribunal will decide as a question of fact whether the voluntary overtime should be included in this particular case.Continue Reading Should voluntary overtime be included when calculating holiday pay?

In our previous blog, “Are obese workers protected from discrimination” , we confirmed the advocate general’s opinion in the case of Kaltoft v Municipality of Billund (case C-354/13) that while obese workers were not automatically covered by EU disability discrimination law, the worker may be considered to be disabled where he or she is “severely…

Most employers recognise the need to treat employees who are on long-term sick leave fairly and with compassion. But this has to be balanced with the needs of the business, and sometimes it becomes clear that unfortunately an employee will never be able come back to work, and the employment relationship simply has to be brought to an end.

What can (and should) employers do in this situation? Does the recent case of Warner v Armfield Retail & Leisure Ltd change how an employer should react?  Here are some important steps that employers should take to minimise the risk of claims. Continue Reading Faced with an employee unlikely to ever return to work? What can you do?

In the recent case of Lorne Stewart plc v Hyde and others, the EAT made clear that it is important not to get side-tracked by the details of formal written contracts which are in place between the parties before and after a potential TUPE transfer, if such details do not reflect reality. Rather, it is essential to consider whether, in practice and on the facts, there is a service provision change and, if so, whether the employees in question are assigned to an organised grouping of employees which has as its principal purpose the carrying out of the activities concerned. Continue Reading TUPE service provision change – look at what is going on ‘on the ground’, as well as the contract

Holiday pay is often a tricky issue for employers and one which seems to be changing constantly. In the light of several new cases discussing holiday pay which have been reported over the summer and in the last couple of weeks, we take the opportunity to round up the legal developments, and set out five things employers should know before deciding how much holiday pay an employee may be entitled to on termination of their employment.Continue Reading Holiday pay – five things you should know when calculating holiday pay

In Seawell Ltd v Ceva Freight (UK) Ltd and another UKEATS/0034/11, the Employment Appeal Tribunal (“EAT”) held that an employee who spent 100% of his time working for a single client was not an “organised grouping of employees” for the purposes of regulation 3(3)(a)(i) of the Transfer of Undertakings (Protection of Employees) Regulations 2006 (“TUPE”). Therefore when the client brought in-house work previously carried out by the Claimant’s employer, there was no service provision change.
Continue Reading Service provision changes: Is an employee who works only for one client an “organised grouping of employees”?

This post was also written by Seth C. Carmack.

On April 12, 2012, the California Supreme  Court issued its long-awaited decision in Brinker Restaurant Corporation v. Superior Ct. (Hohnbaum), No. S166350. The decision clarified several important issues regarding California employers’ obligations in connection with meal and rest breaks for non-exempt employees. It also offered guidance regarding the certification of meal and rest period wage and hour class actions.Continue Reading Back from the Brink: California Employers Finally Get Clarity on Meal/Rest Breaks

The Employment Appeal Tribunal (EAT) has held in Johnson Controls v Campbell and Anor that there was no service provision change under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) where a centralised taxi booking service was brought back in-house by the client. Although the client was still undertaking the activity of booking taxis, there was no “centralised service” in place following the transfer. As a result, there was held to be an essentially different activity in place and TUPE did not apply. 

This case follows another recent decision in Nottinghamshire Healthcare NHS Trust v Hamshaw and others which held that where care services transferred from the Trust to new providers there was not a service provision change because the services were not fundamentally or essentially the same, owing to the methods used to provide them.Continue Reading TUPE: Service Provision Changes and what activities transfer

The Court of Appeal in Woodcock v North Cumbria Primary Care Trust has ruled that the savings of costs alone will not, without more, amount to a legitimate aim so as to justify discrimination. In this case, Mr Woodcock was dismissed by reason of redundancy just before his 50th birthday in order to avoid his qualifying for significant enhanced early retirement terms. The Court of Appeal (CA) held that this treatment amounted to discrimination by reason of age but was justified since the legitimate aim of dismissing him was to give effect to his redundancy and to save costs. The aim of the dismissal at that particular age was not purely to save costs and so was justifiable.Continue Reading ‘Costs plus’ approach to justifying discrimination in the UK endorsed by the Court of Appeal