The holiday season is now upon us, so it is a good time to highlight some key points relating to annual leave (see below). In this issue we also cover some important recent decisions on religious discrimination, unfair dismissal, TUPE and working time.
Please note there will be no newsletter in August, so we hope you have a great summer, and we’ll be back again with a full update in September.
Annual leave reminder
Firstly, it is important to ensure that you calculate holiday pay correctly. If your employees earn a regular salary without any variation in their pay you simply continue to pay them as usual whilst they are on leave. If they have a variable amount of pay you should take an average of the last 12 weeks’ pay when calculating holiday pay. Given recent rulings from the courts, ensure that your calculation includes commission, non-guaranteed overtime and any financial allowances that the employee receives which are related to work. Contact us if you are unsure what to include.
Secondly, it would be a good opportunity to check your sickness absence policy to make sure that it is clear what employees should do if they are taken unwell whilst on leave, and want to take sickness absence leave instead of annual leave. It is clear from case law that employees cannot take sick leave and annual leave at the same time. However, this does not necessarily mean that an employee can just return from their holiday and tell you that they were unwell. Your usual reporting requirements can apply. If you require employees to inform you of their absence within a certain period (typically within one hour of the time work normally starts) you can also impose that requirement whilst an employee is on holiday. Again, contact us if you have any queries or would like assistance in reviewing and/or updating your sickness absence policy.
Inability to work on Holy days
Different religions have different holy days, and accommodating all employees when putting work rotas together can be difficult. If you are going to insist that employees are available to work on a particular day of the week you must be able to justify that requirement.
In Fhima v Travel Jigsaw  a Jewish lady applied for a job. She was told that the shifts were 7-11am on Monday to Saturday, but all employees were allowed two days off a week. She observed Shabbat (the Jewish day of rest from sundown on Friday to sunset on Saturday) and hence was unable to work on Saturdays.
The employer alleged that she did not tell them about being unable to work on Saturdays in the initial telephone interview, which she denied. At the final interview she told them that she could not work on Saturdays and they decided not to offer her a job because of this. She claimed discrimination on the grounds of her religion.
Her claim was successful, and she was awarded £8,000 for loss of earnings and £7,500 for injury to feelings.
The difficulty that this employer had was showing that the requirement to work on Saturdays was justifiable. It was not able to show that the work rotas could not be organised in such a way to accommodate Fhima.
It would be wrong to conclude that this case tells us that an employer cannot insist that an employee is able to work on certain days. Indeed, in the case of Mba v London Borough of Merton  the Court of Appeal ruled that it was not indirect discrimination to require a Christian employee to work on Sundays because she worked in a home for children where 24 hour cover was required 7 days a week and there was a requirement to have a mix of genders and skill level amongst the staff on every shift.
What the case of Fhima does tell us is that an employer must have a good reason for requiring an employee to work on a Holy day, and this must be justifiable.
• If an employee asks not to work on a particular day for religious reasons start by determining if it would be possible to accommodate that request.
• If you do not think that you can meet the request ensure that you have a strong reason for this. If you are not sure whether it would be seen justifiable by the Courts contact us to discuss this.
Putting in place a reasonable dress code
Remaining on the subject of religious discrimination, there has been an interesting case reported relating to religious dress.
In Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery  a Muslim lady applied for a job working in a children’s nursery. She wore a jilbab, which is a flowing garment which covers the woman from her neck to the ground. There was some argument about exactly what the employer asked her to do about this garment, with debate about whether or not she was asked to wear a shorter garment. However, what is clear is that the employer was concerned that the jilbab could be a trip hazard, and refused to allow Begum to wear it. Begum claimed discrimination on the grounds of religion.
Begum was unsuccessful in her claim. It was found that the requirement not to wear a garment that could be a trip hazard was justifiable.
• If you have a dress code ensure that it does not discriminate in any way against individuals on the grounds of their religion. For example, insisting that women wear skirts could be a problem for Muslim ladies who believe that their ankles should be covered. Allow the option of wearing smart trousers instead.
• Also, ensure that your dress code does not discriminate on the grounds of sex. Requiring men to wear a shirt and tie, but allowing women to dress casually could be seen as discriminatory behaviour.
Ensuring a dismissal decision is fair
When deciding whether to dismiss an employee it is important to first check any relevant company policies, and check whether it is fair to conclude that an employee would know that particular behaviours are gross misconduct.
In Ruparell v East London Bus & Coach Co Ltd  a bus driver was dismissed for gross misconduct because he was seen using a mobile phone whilst driving the bus.
Ruparell had parked his bus and had no passengers on board. He decided to take a rest before he was due to leave and set the alarm on his mobile phone. The alarm did not go off, he awoke suddenly and realised that he was late for his scheduled departure. He started the bus moving, and was seen taking both hands off the steering wheel and putting the phone in his pocket.
The dismissal was found to be fair. The company had a very strict mobile phone policy, which included the requirement that phones were not seen in the cab of buses at any time. The company concluded that Ruparell had breached this policy. Ruparell had been made aware of the policy, and the key requirements were regularly emphasised to bus drivers.
• Do you have any essential work-related behaviours that employees must adhere to? Are you sure that employees are aware of this, and are you sure that your company policies relating to this are clear?
• Before making any decision to dismiss read back over any relevant policies. Should the employee have known that the actions under question were unacceptable?
The importance of having a clearly written contract
If an employee acts in a way that can be seen as a breach of their contract of employment it could potentially be fair to dismiss that employee. However, problems will occur if the contractual clause is not clear and it cannot be concluded that there really is a breach.
In The Basildon Academies v Amadi and another  the employee was a teacher at a college. He had been accused of a sexual assault by a pupil in a former teaching job. The police had been involved, but had taken no action. He did not tell his new employer about the previous allegation.
There was a clause in Amadi’s contract with the college that required him to inform them of any offence or any allegation that was relevant to his work. The wording of this clause meant that it only referred to offences or allegations that occurred whilst he was in the college’s employment. The college found out about the previous allegations and dismissed Amadi because he had not disclosed the allegations to them. They argued that the clause should be read to include past offences and allegations as well as ones that occurred whilst Amadi was in their employment.
The dismissal was unfair. The contractual clause did not expressly require Amadi to inform the college about the allegations, and hence it was not possible to conclude that Amadi had breached his contract of employment.
• If you are using standard contractual clauses in your contracts of employment take time to read through them carefully. Is there any way that they could be misunderstood or misinterpreted? Contact us if you are not sure.
• If you add in, or adapt, contractual clauses for new starters ensure that they are clearly written and that there is no uncertainty about what they say. Again, if you need help with writing the contractual clauses contact us for assistance.
Knowing when transfer legislation applies
If part or all of a business moves from one employer to another, or if a service provided by one organisation moves to another organisation, it is likely that the employees are covered by transfer of undertaking legislation (referred to as TUPE). This means that the employees cannot be dismissed because of the transfer, and they transfer with their contractual terms and continuity of service.
What happens if there is a service that has been outsourced to a provider, who has then outsourced the service again? Do the employees transfer? This question was addressed in the case of Jinks v London Borough of Havering .
Havering had outsourced the management of an ice rink and car park to Saturn Leisure Ltd. Saturn had then sub-contracted the management of the car park to Regal Car Parks. Mr Jinks worked for Regal. Subsequently Saturn decided not to continue with the arrangement and the management of the car park returned to Havering. Mr Jinks argued that he should transfer to Havering, but they disagreed. They argued that Regal had provided a service to Saturn and not to Havering, and hence the transfer of undertaking legislation did not apply.
The Employment Appeal Tribunal has ruled that this situation could be covered by a transfer of undertaking, and has referred the case back to the Employment Tribunal for them to review. The key question is on whose behalf Regal was operating the car park. It appears that this is on behalf of Havering, and hence this could be a TUPE situation.
• If you are putting a service out to tender, or bringing a service back in house to manage yourself, be aware that individuals working to provide services that have been sub-contracted further could be covered by transfer legislation.
• This is a complex area, so we strongly recommend that you contact us for further advice if you find yourself facing this situation.
Travelling to work is working time
The opinion of the Advocate General has been received in relation to a case that has been referred to the Court of Justice of the European Union. The opinion is usually followed by the Court of Justice, although it is not obliged to do so.
The case of Federación de Servicios Privados del sindicato Comisiones Obreras  concerns employees who install security systems. They are not based at a place of work, but receive a list of jobs each day and then travel to each one. Their employer does not count the time that they travel to the first job of the day, and the time taken to travel home from the last job, as part of working time. The employees argue that this is wrong. The Advocate General has agreed with the employees – working time is when the employee is at the workplace, is at the disposal of the employer or carrying out work duties. Travel to jobs falls within this definition.
We still wait for the final judgment from the Court of Justice, but in the meantime if you have employees who travel in this way:
• Review your provision of rest breaks. Does adding in the travel time mean that they are getting adequate rests?
• Review the working week. Does the travel time take them beyond the 48 hour maximum?
• Review your payment – when these hours are added in are they receiving at least the National Minimum Wage?
Reminder – National Minimum Wage rates to go up
Remember that the National Minimum Wage (NMW) rates go up on 1 October 2015. If you have any workers receiving the NMW now is a good time to be reviewing the changes that you will need to make. As well as making the legally required increases, you will also need to review the impact on other grades of pay. Is there a need to increase other grades to keep the demarcation between them?
Also, remember that you should be writing to employees when their pay goes up because they have had a birthday and have gone into the next payment band.
The old and new rates are:
Age From 1.10.15 Current
21 years + £ 6.70 £ 6.50
18-20 years £ 5.30 £ 5.13
16-17 years £ 3.87 £ 3.79
Apprentice rate £ 3.30 £ 2.73