The latest employment law news in brief for October 2016.
As the Autumn season gets into full swing, Ashley Norman provides a round-up of this month's key employment news in brief, including holiday pay, shared parental pay, data protection and the GMC, and new judicial assessment of the merits of ET claims. We also look at the latest Brexit developments and provide details of a free webinar and our next series of on-site training events.
Please click here to access a free Bevan Brittan webinar on 'Right to Work Checks: Understanding and Complying with the Law', by Jaspal Basra, one of our immigration law specialists. The webinar covers
Please note that the law in this webinar is as stated as at Summer 2016 and that it is intended to provide general guidance rather than specific legal advice. If you have a specific query on right to work checks or any other aspect of immigration law, including our bespoke immigration law training, please contact Jaspal Basra or Ashley Norman.
Our annual round-up of the latest developments in employment law, and preview of forthcoming changes, will be taking place in December at our offices, on the following dates and at the following locations.
Registration will open at 9.30am, with the session starting at 10.00am and followed by lunch at 1.00pm. This is a free event and places are booking fast. Please click here for more details and booking arrangements.
In the latest development in the long-running saga of the correct calculation of holiday pay, the Court of Appeal has handed down its judgment in British Gas Trading Limited v Lock.
This judgment picks up the holiday pay story where Bear Scotland v Fulton left off. In Bear Scotland, it was decided that an employer should include overtime in their holiday pay calculations. In Lock, Mr Lock, worked as salesman for British Gas and an important component of his pay was based on commission. This had the effect that his wages were significantly reduced as a knock-on effect of taking holiday. Following a reference to the European Court of Justice, an employment tribunal held that results-based commission must be included in the four weeks' of statutory holiday pay; this decision was appealed to Employment Appeal Tribunal (EAT), which agreed with the employment tribunal. British Gas appealed to the Court of Appeal which has also agreed with the tribunal and the EAT that results based commission should be included in holiday pay calculations.
In terms of the practicalities of making a payment, however, the court did not make any comments, only observing that there may be questions as to what the appropriate reference period to be used – citing the hypothetical example of a banker paid a large annual bonus in, for example, March each year: should their summer holiday pay incorporate the bonus payment?
This is, however, unlikely to be the last we have heard on the question of holiday pay: we understand that British Gas will apply for permission to appeal to the Supreme Court. It is interesting to note that the Court of Appeal said in its judgment that it "waivered" in its decision; so, despite the run of successful appeals in this litigation, the outcome of any Supreme Court case is not a foregone conclusion.
Now that shared parental leave and pay has been available for over a year, we are starting to see cases coming through on the equality aspects of shared parental pay.
As we reported earlier this year, a male employee had come to individual arrangements with his employer to equalise his shared parental leave pay with the pay of female colleagues. We now have a Scottish employment tribunal decision, in which the employer admitted that paying enhanced shared parental leave pay to mothers but not fathers was discriminatory (and, interestingly, then revised payments downwards for both genders).
As liability was admitted, the tribunal only had to consider the level of compensation to award to the claimant. In Snell v Network Rail Infrastructure Limited (unreported) the tribunal awarded the claimant approximately £23,000 including £6,000 injury to feelings and £16,129 for future loss, being the difference between statutory shared parental pay and what he would have received had he been entitled to the enhanced level of pay. These figures do, however, only offer a guide to any damages awarded by another tribunal, as this decision is not binding. Had this case continued to a full hearing, Network Rail intended to justify its policy on the basis that the correct comparator for the claimant was a female partner and not a mother or primary carer, and that even if the policy put the claimant at a disadvantage, it could be objectively justified (as a way of attracting and retaining female employees to a male dominated workforce).
In Dr DB v General Medical Council (23 September 2016), the High Court has decided that the General Medical Council was wrong to comply with a patient's subject access request for disclosure of a report into his former doctor's competence. The High Court had to balance the doctor and the patient's competing privacy rights under the Data Protection Act 1998 (DPA), and the court concluded that the report should not be disclosed to the patient.
It is interesting to note that, in coming to its decision, the High Court took into account the fact that the subject access request was made pursuant to potential legal action by the patient against the doctor in question: so if the sole or dominant purpose of the subject access was litigious, then this was a significant factor to consider in conducting the balancing exercise between competing privacy rights.
Finally, the judge provided the following practical guidance steps for data controllers balancing rights under the DPA in future mixed data cases.
If you require further guidance on this topic, please get in touch with your usual Bevan Brittan contact or Joanna Smart, in our specialist Information Law team.
In line with the current focus on reducing the number of tribunal claims which proceed to a full hearing, it is now possible for either party to request an early, non-binding, judicial assessment of the relative merits of a case. This is operated under a new protocol, which can be accessed here. It is a voluntary and confidential process. If the case proceeds to a final hearing, a different judge will preside and will not see the notes of the judge who made the initial judicial assessment. The assessment is undertaken at the case management hearing, before any witness evidence is presented, with a view to assisting parties with settlement discussions.