November 2019 Newsletter

Welcome

“May you live in interesting times” is purportedly a traditional Chinese curse.  Seemingly a blessing, the opposite is actually intended.  Well, we do live in interesting times and I’m not just referring to the debacle currently taking place at the Palace of Westminster.  Below, and in the And Finally section, are a couple of snapshot examples of how interesting the times are:

Newspaper headlines last week declared Oxford University Student Union has ruled that clapping should be replaced by ‘jazz hands” at meetings.  The sound of applause has apparently caused an “access issue” at that fine institution of the country’s finest minds and intellectually robust.  The union says applause and ‘whooping’ can cause problems for people with anxiety disorders, sensory sensitivity and those who use hearing aids.  “Jazz hands”, for the uninitiated, involves waving both hands by the sides of the body at about shoulder height (it is the British Sign Language expression for applause).  Has any thought been given to the counter-impact on the sight impaired or does the negative impact of applause outweigh that access issue?

For balance, the Student Union says it has not ‘banned’ clapping but has simply voted to encourage sign language so that students can more fully participate in ceremonies.

So, on with this week’s Update which covers such diverse topics as veganism, menopause and a surprising holiday pay decision which may affect the way in which you calculate holiday pay for staff.

Daryl Cowan, Partner

Veganism and vegetarianism

Some of you may recall that at our breakfast seminar in May I delivered a talk on the case of Casamitjana v The League Against Cruel Sports.  Part of Mr Casamitjana’s case was that ethical veganism amounted to a philosophical belief for discrimination purposes and so received the protections afforded by the Equality Act 2010.  As I mentioned back in May, the hearing to determine the status of veganism as a philosophical belief is due to take place later this month.

In the meantime, a separate case has considered whether vegetarianism is a protected characteristic under the Equality Act.  As a brief reminder, a belief could amount to a philosophical belief under the Act if it:

a) is genuinely held and not a mere opinion or viewpoint;

b) is a weighty and substantial aspect of human life and behaviour;

c) attains a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society; and

d) is compatible with human dignity and does not conflict with the fundamental rights of others.

Both the Employment Tribunal and Crossley Farms accepted that Mr Conisbee was a vegetarian and that he had a genuine belief in his vegetarianism.  Mr Conisbee believed that the world would be a better place if animals were not killed for food.

However, the Employment Tribunal concluded that vegetarianism is not a belief capable of protection.  It found it is not enough to have an opinion based on some real, or perceived, logic.  Having a belief relating to an important aspect of human life is not enough in itself to have a similar status to a religious belief.  This is because vegetarianism is predominantly a life style choice and so cannot be described as relating to a weighty and substantial aspect of human life.

Additionally, whilst the Employment Tribunal accepted there are many vegetarians across the world, the reason for being a vegetarian differs greatly.  This is unlike veganism where the reasons for being a vegan appear to be largely the same.  Vegetarians adopt the practice for many different reasons; lifestyle, health, diet, concern about the way animals are reared for food and personal taste.  Vegans do not accept the practice of eating meat, fish or dairy products under any circumstances and there is a clear belief that killing and eating animals is contrary to a civilised society.  The Tribunal found there to be a clear cogency and cohesion in vegan belief, which was absent in vegetarianism.

The Tribunal therefore concluded on balance that vegetarianism did not amount to a philosophical belief capable of protection under the Equality Act 2010.

You may recall that during our breakfast seminar we suggested it is likely ethical veganism would be found to be a philosophical belief, and the Employment Tribunal’s comments in this case seem to support this.  Stay tuned for the outcome of the hearing regarding the status of veganism later this month.

Louis Howlett, Solicitor

 Holiday Pay – a surprising decision  

As you will probably be aware if you are a regular reader, the calculation of holiday pay is an area of employment law which is continuing to evolve, with courts attempting to clarify how employers should be calculating holiday entitlements.

In the case of Brazel v The Harpur Trust, the Court of Appeal addressed how employers should calculate accrued holiday pay for employees who don’t work for large parts of the year.

Background

Many employers use the “12.07%” method for calculating holiday entitlement for casual workers.  For those of you who haven’t come across this before, you will know that workers are entitled to 5.6 weeks’ paid holiday each year.  A year is 52 weeks.  Subtracting 5.6 weeks’ holiday leaves 46.4 working weeks in the year.  And 5.6 is 12.07% of 46.4 (stay with us, the maths gets easier!).  Using this method, holiday entitlement equates to just over seven minutes for each hour worked.  For example, if a worker had worked 10 hours, he/she would be entitled to 72.6 minutes’ paid holiday (12.07% x 10 hours = 1.21 hours = 72.6 minutes).

Spoiler alert: Brazel v The Harpur Trust concludes that this method of calculation is incorrect for certain types of workers.

The employee in question, Ms Brazel, was a part-time music tutor employed by The Harper Trust (“Trust”).  Ms Brazel did not work a full working week in the traditional part-time sense.  She typically taught between 20-30 half-hour lessons per week.  The important aspect of this case was that, for large parts of the year, Ms Brazel had no work at all.  She didn’t give any lessons during school holidays, although she was still employed on a permanent contract throughout the holidays.

To describe Ms Brazel’s particular type of part-time work, the Court of Appeal coined a new phrase – a “part year worker” (as opposed to a “full-year worker” – someone who works all year save for annual leave entitlement).

Just like any other employee, Ms Brazel was entitled to 5.6 weeks’ paid annual leave.  However, since the school holidays are far longer than 5.6 weeks, neither she nor the Trust thought it necessary to explicitly designate any particular parts of the school holidays as statutory leave. Instead, by agreement, the Trust made three equal payments in respect of Ms Brazel’s leave at the end of April, August and December.

This would appear to be a logical approach.  The Trust made these three holiday payments in accordance with the Acas guidance for staff who work on a casual basis or irregular hours, simply calculating Ms Brazel’s earnings at the end of a term in accordance with the 12.07% method and paying her one-third of 12.07% of that figure.

To illustrate the issue in this case, let’s say a full-year casual worker worked 20 hours per week every working week of the year at £10 per hour.  The casual worker’s holiday entitlement could be calculated as follows:

  • 20 hours x 46.4 working weeks = 928 hours.
  • 928 hours x 12.07% = 112.0096 hours (holiday entitlement).
  • 112.0096 hours x £10 hourly rate = £1,120.10 holiday pay (rounded).

In line with this calculation, a part-year worker’s holiday entitlement would be as follows:

  • 20 hours x 32 working weeks = 640 hours.
  • 640 hours x 12.07% = 77.248 hours (holiday entitlement).
  • 77.248 hours x £10 hourly rate = £772.48 holiday pay.

So far, so good, some of you may say.  Whilst the Trust’s calculations mean that a part-year worker loses £347.62 when compared to a full-year worker, you could argue that this simply reflects the fact that a full-year worker works more hours than a part-year worker.

However, Ms Brazel argued that this method put her at a disadvantage.  She said that her holiday pay should be calculated by using the statutory method of calculating a week’s pay by taking the average weekly remuneration for the twelve weeks prior to the annual leave; and then, multiplying it by 5.6.  As you can see from the following example, this would result in the part-year worker receiving a higher amount of holiday pay (the same as a full-year worker):

  • 240 hours worked over the preceding twelve weeks – 240 hours / 12 weeks = 20 hours average per week.
  • 20 hours x £10 = £200 average weekly remuneration.
  • £200 x 5.6 weeks (annual leave entitlement) = £1,120 holiday pay.

As such, rather than receiving 12.07% of annual earnings for holiday pay, Ms Brazel would actually be receiving around 17.5% of annual earnings for her holiday entitlement.

Employment Law SnapshotThe Decision

In essence, the Court of Appeal had to decide whether Ms Brazel’s holiday pay should be reduced on a pro rata basis to reflect the fact that she was a “part year worker” (the Trust’s method), or whether her holiday entitlement should be calculated in the same way as a full-time employee (Ms Brazel’s method).

The Court of Appeal held that there was no requirement to implement a pro rata principal in a situation where an employee works for part of the year, such as Ms Brazel.  The Court of Appeal decided that the calculation is (allegedly) a straightforward exercise, that is, Ms Brazel was correct and holiday pay should be determined by calculating a week’s pay by taking the average weekly remuneration for the twelve weeks prior to the annual leave; and then, multiplying it by 5.6 (even if this results in “part-year” workers receiving a higher proportion of their annual earnings as holiday pay when compared to full-time employees).

As a result of this case, those who currently use the 12.07% approach to pay holiday to their zero hours staff with permanent contracts should consider adapting the way that holiday pay is calculated.  It is important to remember that the 12.07% method was never prescribed by the legislation.  It is a rule of thumb designed to simplify the calculations of holiday for those with irregular hours.  This case has not changed the law as such, but highlighted a problem that already existed in relation to the 12.07% method of calculating holiday pay.

If your business is still using this method you could consider performing a reconciliation at the end of each year (and at the end of a contract) to ensure, in retrospect, that no workers have been underpaid their holiday pay.

However, the Court of Appeal made it clear that holiday pay for “part-year” workers should be calculated by assessing average remuneration over the previous 12 weeks (soon to be 52 weeks from April 2020) and multiplying that by 5.6.  Acas and www.gov.uk have updated its guidance to reflect this case.

I run a regularly updated blog on holiday pay which can be found here.

Louis Howlett, Solicitor

Menopause

Last November, we advised on assisting staff suffering with menopausal symptoms following a couple of first instance decisions in the Employment Tribunal and this remains a highly relevant topic in employment law at the moment.

The symptoms of the menopause can affect individuals both physically and psychologically and all individuals will suffer to different severities and at different times in their life (most commonly between the ages of 45 and 55).  The symptoms can include (but are not limited to): hot flushes, headaches, confusion and depression.  Although the seriousness of such symptoms will vary, it is likely that at some stage they will inhibit an individual’s ability to perform at their full (or expected and usual) potential.

The first instance decisions in both Merchant v BT Plc and Davies v Scottish Courts and Tribunals Service (covered in the last article that can be found here) have shown that, whilst the menopause itself is not a protected characteristic within the Equality Act 2010, an employer’s treatment of staff undergoing the menopause could give rise to the potential for discrimination.

It is therefore increasingly important that employers are aware of the impact the menopause can have on their staff and to be raising awareness in the workplace in order to avoid any form of “menopause-related discrimination”.

Three key points for employers to consider are:

  1. Open conversations

Encouraging staff to feel comfortable to have open discussions and approach their line manager (or Human Resources) about their symptoms and the support they feel they may need at work.  This will enable you to avoid or reduce the likelihood of potential performance and absence issues developing.

Ensuring that all staff (not just those that are suffering from symptoms) are aware of the menopause and how they can best support those affected.  It may be useful to incorporate such within workplace training for all employees.

  1. Risk assessments

As an employer, you have a duty to carry out sufficient assessments in the workplace to assess the health and safety risks of employees, this should include identifying and addressing specific risks to the health and well-being of those suffering from symptoms of the menopause just as you would for women that are pregnant, for example.

This will assist in ensuring that aspects of the working environment do not worsen an individual’s symptoms and any adjustments can be made where possible.

  1. Support and adjustments

Encouraging open conversations and carrying out risk assessments will enable you to identify where support can be provided and what adjustments can be provided.

In some cases it may be that the symptoms suffered amount to a disability under the Equality Act 2010, in which case you will have a duty to make reasonable adjustments.  You should consider adjustments that the employee believes they may benefit from e.g. fans to help hot flushes.  If adjustments are requested that are just not possible to accommodate, it may be necessary for you to consider taking medical advice on the individual’s condition.

If, as an employer, you require additional support in relation to this topic, we are able to provide a policy and also advise on the best approach to handle employees that are suffering.

Laura Kelleher, Solicitor 

And Finally…

Advice given to female executives at an Ernst & Young training session held in New Jersey apparently included (as widely reported in the media) the following by a female trainer:

When women speak, they shouldn’t be shrill.  Clothing must flatter, but short skirts are a non-runner because, remember, “sexuality scrambles the mind”.  Women should look healthy and fit, with a “good haircut” and “manicured nails.”

And also: women’s brains absorb information like pancakes soak up syrup so it’s hard for them to focus.  Men’s brains are more like waffles.  They’re better able to focus because the information collects in each little waffle square.

For balance, the company said it disagrees with the way the seminar has been characterised and that “any isolated aspects are taken wholly out of context”.

May we live in interesting times…

Daryl Cowan, Partner

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