Employment Tribunal compensation
Compensation limits for some tribunal awards will increase from 6 April 2021:
- The compensatory award for unfair dismissal increases to £89,493 (or a year’s gross pay, whichever is lower)
- The statutory cap on a week's pay increases to £544
From 1st July, the government will continue to pay 80% of furloughed employees' salary for hours not worked, with a new taper requiring employers to contribute 10% to wages in July and 20% in August and September.
Backdating holiday pay
In 2018 Gary Smith won his case in the Supreme Court against Pimlico Plumbers when it ruled that he was a worker rather than self-employed. This ruling meant that he could pursue a number of other claims including non-payment of holiday pay. However, the Employment Tribunal dismissed this particular claim because it was out of time so Mr Smith appealed. The EAT has recently ruled on this appeal, upholding the ET’s original decision. Mr Smith’s case hinged on King v Sash Windows where the CJEU ruled that workers who were denied the right to take holiday can hold it over indefinitely. The EAT agreed with the original tribunal that Mr Smith’s case could not be compared to King v Sash Windows as he had taken leave even though he had not been paid for it. It also agreed that Mr Smith should have brought his claim within the prescribed time limit. This case reinforces the ruling in Bear Scotland v Fulton which confirms the three-month gap for calculating back dated holiday pay still stands. This case also shows that employers need to classify their workforce correctly, as getting the classification wrong can have costly consequences.
As Covid restrictions start to ease, many employers are considering the future of the workplace with many revisiting their flexible working policies in order to accommodate requests from those who have been home-working for the past 12 months to continue to do so for part of their working week. This has been labelled ‘hybrid working’ and is receiving considerable press attention. Given that many employees have had to, out of necessity, fit their working day around other obligations such as caring for a vulnerable person or home schooling, we are seeing a shift in employers’ focus towards what an employee achieves rather than hours worked. Please contact us for advice on drafting a hybrid working policy.
Normal procedures for Right to Work checks reinstated
From 17 May 2021, employers can no longer carry out right to work checks via video calls, or accept scanned copies or photographs of original documents. Instead, employers must either see an individual’s original documents or use the Home Office’s online checking service but, in both cases, the individual must be present either physically or via a video link. There are a number of Covid-related issues employers will need to consider, not least ensuring that any face-to-face meetings are Covid-safe, and how to manage international employees who need to self-isolate on arrival. In addition, employers now no longer need to carry out retrospective checks on those employees taken on while temporary measures were in place. Please contact a member of the team if you need advice on how to proceed.
Case update: Shared parental leave
In March, the EAT handed down its judgment relating to a discrimination claim arising from a perceived discrepancy between the amount paid to those taking shared parental leave and those taking adoption leave. Mr. Price claimed that amount he was eligible to be paid for Shared Parental Leave (the equivalent of statutory maternity pay) was discriminatory. He compared his pay to that of a female colleague who had taken adoption leave on full pay. The first tribunal had dismissed his claim on the basis that it was incorrect to compare his situation with that of his female colleague and so he appealed. The EAT dismissed his appeal, agreeing with the first tribunal that ruled there was a material difference between someone taking adoption leave as the adopter (the person who has opted to take statutory adoption leave) and someone taking shared parental leave. A more reasonable comparator would have been a female taking shared parental leave, in which case she would receive the same pay under the shared parental leave policy as Mr. Price. Shared parental leave has been a thorny issue for some time, with observers describing it as deeply flawed. Despite a government commitment to review the policy, little progress has been made. In the meantime, employers must ensure that their relevant policies are correctly drafted in order to avoid discrimination claims.