As we begin 2023, we have pulled together a small selection of employment tribunal cases from 2022 which highlights key employment issues.

 

Jandu vs Marks and Spencer Plc – disability discrimination

Ms Jandu had been employed as a layout planner at Marks and Spencer from March 2013 until her dismissal.  This took place in October 2020 by reason of redundancy.

Ms Jandu was marked down in a redundancy scoring exercise. This was because of various alleged performance issues including mistakes/ errors in her work; accuracy and time management, communication feeling rushed and not providing more clarity; balancing workload and communication tone. None of these issues was previously raised.  Ms Jandu suffers from Dyslexia.  She raised the effect of her dyslexia on the scoring but Marks and Spencer refused to accept. No further enquiries with Ms Jandu or by obtaining Occupational Health advice were made.

In this employment tribunal case, the tribunal upheld Ms Jandu’s claims for:

• disability discrimination arising as a consequence of her disability;
• failure to make reasonable adjustments; and
• unfair dismissal.

 

Smith v Pimlico Plumbers – Holiday pay

Mr Smith was engaged by Pimlico Plumbers as a self-employed plumber. He was not provided with paid leave throughout his six-year engagement but took unpaid leave.

Mr Smith was found to be a worker. The Court of Appeal held workers only lose right to take leave if the employer can prove they were given opportunity to take paid holiday and informed it would otherwise be lost. Thus, Mr Smith could carry over the leave to subsequent years and be paid in lieu on termination for the full six years.

The financial cost of wrongly denying worker status and thus workers’ paid holiday is that they will be able to carry over the holiday into subsequent years, regardless of whether they took it or not, and to claim for payment in lieu on termination of their contract.

 

Brazel v Harpur Trust – calculation of Holiday

This employment tribunal case clarified the law concerning pro-rated holiday entitlement. The issue was around whether a worker’s right to paid annual leave is accumulated according to the working pattern of the worker and/or is pro-rated.

Mrs Brazel, a music teacher worked during school term time only, meaning she only worked for part of the year. Mrs Brazel argued the 12.07% allowance she received for holiday pay was incorrect. Instead, it should be calculated based on her average weekly pay excluding the weeks that she had not worked. Should Mrs Brazel holiday pay be based on her average pay before her holiday was taken?

The practice of paying a 12.07% allowance did not accurately reflect the holiday pay entitlement of a worker who is permanently employed but works only part of the year. The 12.07% was based on a presumption the work would be carried out throughout the year. A worker had a statutory entitlement to 5.6 weeks of paid holiday leave per year at their normal pay rate.

The decision highlights that the principle of applying a pro-rata reduction to the accrual of holiday entitlement will only apply in respect of the hours worked over a week, not the weeks worked over a year. The practical impact is that paying an additional 12.07% in wages may lead to an underpayment for part-year workers.

 

Government Consultation

Following the Supreme Court judgement in this case, the government has issued a consultation paper on the calculation of holiday entitlement received by part-time and irregular hours workers.

The Government wishes to address this disparity to ensure that holiday pay and entitlement received by workers is proportionate to the time they spend working.

The proposal is to introduce a holiday entitlement reference period for part-year and irregular hours workers. The consultation paper was published yesterday (12 January 2023) and closes on 9 March 2023. To ensure holiday pay and entitlement is fair across the different types of workers, we encourage you and your clients to respond to help address the balance.

 

Burke v Turning Point Scotland – Long Covid

Mr Burke was employed as a caretaker from April 2001. In November 2020 he caught Covid. After the initial isolation period, symptoms continued. Mr Burke had disturbed sleep, body aches, headaches and an inability to concentrate over an extended period. He was unable to undertake basic day-to-day activities such as standing for long periods or walking to the local shop.

Mr Burke had been on sick leave since November 2020 for about nine months when he was dismissed. His absence from work was supported with Statements of Fitness to Work (“fit note”) from his doctor. The fit notes suggested he had long Covid and post-viral fatigue syndrome. The employer sought two occupational health reports in April and June 2020. Both these reports contracted with the Fit Notes and stated Mr Burke was fit to return to work and that it was unlikely that the disability provisions of the Equality Act 2010 would apply.

Under the Equality Act 2010 a disability is defined as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. “Long-term” for these purposes means the impairment has lasted 12 months or is likely to last at least 12 months or for the rest of the person’s life. In this employment tribunal case, it was found that the employee’s symptoms met the relevant tests of the definition of disability.

Not all long Covid sufferers will be disabled. But this is a reminder that the associated symptoms are capable of meeting the definition. The decision is also a useful reminder for employers not to rely on occupational health reports to make conclusive determinations about whether or not an employee is disabled.

 

Finn v The British Bung Manufacturing Company – Sexual harassment

Mr Finn, the Claimant, following comments about his baldness from co-workers, issued a claim for sexual harassment.

Unwanted conduct related to a protected characteristic which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The comment was unwanted conduct with the purpose or effect of violating the claimant’s dignity.

In this employment tribunal case, the Tribunal concluded this harassment was inherently linked to the protected characteristic of sex.  This was on the basis that baldness is more common in men.

 

Author: Charlotte Allfrey, Director