Employment Law Brief | July 2019

Welcome to the latest edition of our monthly employment newsletter. We keep track of the latest employment law changes so you don't have to!

• How much holiday leave can an employee carry over due to sickness?
• Can an allegation of stealing someone else's food lead to whistleblowing protection?
• What's the current position on harassment at work and the use of non-disclosure agreements?
• Are the number of tribunal claims still increasing?
• Does voluntary overtime have to be taken into account when calculating holiday pay?
• Will the Government make it easier to employ non-EU nationals?
• Are your employees fat and lazy?

If you wouldlike to discussany of the issues raised below, please don't hesitate to contactLiz HenryorJames Austin

How much holiday leave can an employee carry over due to sickness?

Workers entitlement to holiday is set out at European level in the Working Time Directive (WTD). The WTD states that workers are entitled to four weeks holiday per year. In the UK the Working Time Regulations (WTR) provide for a longer period, 5.6 weeks' holiday per year. Case law over the last couple of years has stated that despite the WTR stating that holiday cannot be carried over, it can be in various circumstances including where a worker is unable to take holiday due to sickness absence. Most employment lawyers have taken the view that the right to carry over only applies to the four weeks' holiday available under the WTD and that employers can choose not to allow carry over of the additional 1.6 weeks' provided by the WTR. However this has been open to argument.

The position was considered by the Advocate General in the case of TSN v Hyvinvointialan liitto ry. The Advocate General found that member states could have rules meaning that carry over would only apply to the first four weeks of holiday entitlement. This decision isn't binding, but hopefully will be followed by the European Court of Justice when they consider the position shortly.

Can an allegation of stealing someone else's food lead to whistleblowing protection?

In order to bring a successful whistleblowing claim a worker needs to show they have suffered a detriment or been dismissed because they made a qualifying disclosure. This is any disclosure of information which, in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of six specified types of wrongdoing has taken place, is taking place or is likely to take place. The potential whistleblower doesn't have to prove that the allegations are true. As long as the worker subjectively believes they are true and the tribunal accepts that such a view is objectively reasonable, it doesn't matter if the allegations turn out to be wrong.

In Elysium Healthcare No 2 Ltd v Ogunlami, Mr Ogunlami had raised a complaint alleging that his supervisor was stealing patients' food. He believed this was in breach of the supervisor's contract of employment and a safeguarding issue. Mr Ogunlami was later moved to another site. After sending a letter setting out his concerns he also received a response warning him off taking the matter further. He claimed both of these amounted to a detriment. The Tribunal and Employment Appeal Tribunal upheld his complaints finding that he believed that there was a breach of the employment contract and that his disclosures were in the public interest. He was awarded £7,500 in compensation.

Hopefully you won't face claims that an employee is stealing someone else's food, but this case also goes to show that you need to tread carefully if faced with an allegation that a colleague is in breach of their contract of employment.

What's the current position on harassment at work and the use of non-disclosure agreements?

The Women and Equalities Select Committee has made a series of recommendations including:

• ensuring that NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment
• requiring settlement agreements to include standard confidentiality and non-disparagement clauses which specify (in plain English) what information can and cannot be shared and with whom
• strengthening corporate governance requirements to require employers to protect workers from discrimination and harassment, and to have named senior managers at board level or similar to oversee anti-discrimination and harassment policies and procedures and the use of NDAs in discrimination and harassment cases.

The Committee also repeated other recommendations, which have already been rejected by the Government including:

• placing a mandatory duty on employers to protect workers from harassment/victimisation in the workplace
• urgent improvements to the remedies that can be awarded by employment tribunals and the costs regime.

The Equality and Human Rights Commission (EHRC) has also published a report stating that victims of discrimination are being denied their fundamental right to justice and perpetrators are going unchallenged because of the current legal aid system.

Meanwhile, various unions, charities and women's rights organisations have formed an alliance called, "This is Not Working", to petition the Government to create legislation requiring employers to take steps to prevent sexual misconduct in the workplace. Their suggestions include a code of practice and mandatory training for staff and managers.

Following the numerous suggestions mentioned above the Government Equalities Office has published, "Gender equality at every stage: a roadmap for change." The document sets out various proposals to tackle sexual harassment including clarifying the rules on third party harassment and considering whether to extend the three-month time limit for bringing discrimination and harassment claims. It also states that the Equality and Human Rights Commission will be required to draft technical guidance later this year which will form the basis of a statutory code of conduct on sexual harassment and harassment at work.

So at the moment all we really have is a series of suggestions. As usual we'll let you know when actual changes take place.

Are the number of tribunal claims still increasing?

Compared to the same period last year, single claim receipts were up by 6% and outstanding claims up by 39%. The period for disposing of a claim has also risen from an average of 27 weeks last year to 33 weeks this year.

Does voluntary overtime have to be taken into account when calculating holiday pay?

This has appeared to be a requirement for some time, but was put into doubt by a European Court of Justice decision at the end of last year. In the recently decided case of East of England Ambulance Service NHS Trust v Flowers, the Court of Appeal has confirmed that if the voluntary overtime is worked regularly it should be included in the holiday pay calculation. What amounts to regularly worked will be decided on a case by case basis.

So at the moment all we really have is a series of suggestions. As usual we'll let you know when actual changes take place.

Will the Government make it easier to employ non-EU nationals?

The full answer is unlikely to be known until Brexit takes place (if it does) but the Migration Advisory Committee has published a review of the shortage occupation list suggesting changes including adding more occupations. The list sets out roles where there are not enough resident workers in the UK to fill vacancies. Unlike other roles, if you want to recruit for a job on the list, you don't have to conduct a resident labour market test (showing no UK resident is available to perform it) before offering it to a non-EU worker. The suggestions include:

• Including all roles in occupations like nurses, programmers and software development professionals.
• Adding veterinarians, web designers and architects to the list.
• Removing a restriction on chef visas.

The changes would mean around 9% of jobs would be included on the list instead of the current 1%. At the moment they're just recommendations though and the situation would need to be reviewed again if we do leave the EU.

Are your employees fat and lazy?

We are currently in the midst of an obesity crisis. As a result the National Institute for Health and Care Excellence (NICE) has published guidelines suggesting various ways that employers can encourage workers to get active. Suggestions include subsidising gym memberships, encouraging staff to use the stairs instead of lifts, and providing adequate facilities for workers who cycle to work.

What's in it for you? Well you might save on the running costs of a lift, but better health may also have a knock on effect on your workforce in terms of productivity and/or absences. Figures from the Office for National Statistics show that more than 131 million working days were lost to sickness in 2017.

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