Employment law update August 2019

Before we reach the final quarter of the year I will provide you with a quick summary of three judgements that have taken place so far this year that could either make you breath a sigh of relief or could leave you wondering what to do next!

1. Enhanced Maternity Pay

In May this year it was found during the case of CC of Leicestershire Police v Hextall / Ali v Capital Customer Management that the act of offering enhanced maternity pay to eligible pregnant female employees but not enhancing shared parental pay did not discriminate against male employees.

The appeal hearing ruled that the circumstances of maternity leave are materially different from that of shared parental leave. The purpose of maternity leave is not just about child care but also allows the mother time to rest and recuperate from birth and bond with her child.

The equality laws that allow mothers special treatment after birth cannot be challenged.

So good news for employers who offer women on maternity leave enhanced pay, you don’t need to take any action to change your policy.

2. Recording of Working Time

There has been some confusion over whether employers will now need to record employees working time following a European Court if Justice(ECJ) ruling in May.

In the case of Federación de Servicios de Comisiones Obreras v Deutsche Bank SAEA the ECJ held that the Working Time Directive which outlines the law on maximum working hours and minimum rest breaks, required all employers to introduce a system which clearly records all of these hours in order to ensure compliance with the law. There are many businesses who do not currently record their employees working time on a system so this could have a big impact on this businesses.

However it still remains to be seen what the UK government will do about this ruling. Current UK law on working time only requires employers to maintain ‘adequate’ records to cover certain areas. This in itself is vague, it is likely that any changes in the UK will be brought in through Health and Safety directives. I will be keeping a close eye on this and post any changes in this area.

3. Including Voluntary Overtime in Holiday Pay Calculations

In June this year the Court of Appeal upheld an earlier decision from the Employment Appeal Tribunal (EAT), finding that voluntary overtime needs to be taken into account when calculating holiday pay if it’s ‘sufficiently regular and settled’.

This decision currently only applies to the four weeks of annual leave provided by the Working Time Directive, however this may still be appealed to the Supreme Court, employers are now encouraged to consider if any voluntary overtime worked is ‘regular’ and ‘settled’.

The Court did not provide clear guidelines on how to determine what is considered as regular and settled so employers will need to decide this.

The more frequently the individual works the overtime, the more likely it will be viewed as ‘regular’.

The consideration for whether it has become ‘settled’ realistically will be if it is considered typical overall. Where it is irregular and unforeseen, it is not likely to count.

Overtime and holiday pay still remains an area of confusion for many employers and they are advised to get some assistance in this area if they are in any doubt.

I have not doubt that by the end of the year there will be further changes and updates and I will provide another summary at the end of the year.

If you would have any questions or comments on any of the above please get in touch: jo@jorivers.co.uk