In this article, John Krafts of KHR Consulting Ltd looks at recent cases which are of relevance to general practice.
Employment tribunal fees
The much publicised and eagerly anticipated decision from the Supreme Court which has declared that Employment Tribunal and Employment Appeal Tribunal fees, which were introduced on 29 July 2013, are unlawful.
The Tribunals have already updated their electronic online systems so a fee is no longer payable and the government have pledged to repay all fees paid to date.
It will be interesting to see how this operates in practice given some employees will have received payment of their fees as part of their award at Tribunal from their employer.
Also, given there was around a 70% decrease in claims being issued into the Tribunal following the introduction of the fees will this latest development result in an increase in claims again? Only time will tell.
Holiday Pay and Voluntary Overtime
In the latest chapter in the long-running holiday pay saga, the Employment Appeal Tribunal has decided that where a worker works regular voluntary overtime over a sufficient period of time, an employer must include this in their calculations for the first four weeks of the worker’s annual holiday.
In the case of Dudley Metropolitan Borough Council v Willets, a number of council workers brought claims against the Council alleging that their regular voluntary overtime should have been included in the calculations of their holiday pay. The courts have previously ruled that both compulsory overtime and commission payments should form part of holiday pay calculations if they form part of a worker’s normal remuneration, but this is the first time purely voluntary overtime has been before the appeal courts.
An Employment Tribunal upheld the workers’ claims and the Council appealed to the EAT. The EAT dismissed the appeal and stated that:
- whilst an “intrinsic link” between the type of work and the employee’s contractual duties could be evidence of normal payments, it was not the only criteria to consider; and
- regardless of the type of work carried out, overtime payments which extend for a sufficient period of time and on a regular or recurring basis, will need to be included.
The upshot is that regular voluntary overtime paid to workers will now have to be factored in to employees’ holiday pay in respect of the first 20 days of leave per year. However, as is the case for other holiday claims, the liability for back-pay is limited as a three-month gap between deductions from wages remains sufficient to break a series, restricting the claims Employment Tribunals are able to deal with.
The gig economy
Another major development last month was the publication of the Taylor report, which was commissioned off the back of the recent flood of cases to land in the Courts and Tribunals in respect of the gig economy and questions arising over employment status. Amongst the many recommendations, Taylor has proposed that the distinction between worker and employee remain but that workers be renamed “dependent contractors” and that they be given additional rights. He has also suggested that legislation and guidance be developed to adequately set out the tests that need to be met to establish employee or dependent contractor status. Any changes to legislation will need to be consulted upon and so this is an important “watch this space” for any GP that uses gig-economy labour.
John runs Kraft HR Consulting Ltd which supports General Practice & other small and medium sized businesses on human resource management issues & can be contacted on firstname.lastname@example.org or on 0115 8491753.
If you wish to explore this issue further with him, he will be happy to give advice and provide stencil documents.
Initial consultations are always welcome and always free!