Employment Law Newsletter August 2023 | Consensus HR – Herts, Beds
Welcome to this Quarters Employment Law Newsletter – August 2023:
In this Employment Law Newsletter edition we discuss:
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BSI publishes new standard on menstruation, menstrual health, and menopause in the workplace
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EAT rules on calculating accrued but untaken statutory holiday following termination of employment
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Exemption in section 406 of ITEPA 2003 applied to part of a termination payment
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Dismissal fair despite several extensions of employment termination dates
BSI publishes new standard on menstruation, menstrual health, and menopause in the workplace
The British Standards Institute (BSI) has published a new standard on menstruation, menstrual health, and menopause in the workplace – Menopause standard launched to help organizations support workers | BSI (bsigroup.com).
Designed following an extensive public consultation and in conjunction with major employment organisations such as Acas and Unison, the report’s aim is to help employers support and retain employees experiencing issues connected to menstruation or the menopause.
EAT rules on calculating accrued but untaken statutory holiday following termination of employment
Connor v Chief Constable of the South Yorkshire Police [2023] EAT 42
The Appellant, Mr Conner, was employed by the Chief Constable of the South Yorkshire Police between 1 November 2002 and 29 May 2020. His working week was 37-hours, and he was paid £29,064 a year in monthly instalments. During his employment, Mr Connor received the equivalent sum for a week of holiday as he would for a week of work.
By the time Mr Conner left the constabulary he had been on sick leave for over a year and had exhausted all his sick pay entitlement.
Mr Connor’s contract incorporated the following term relating to payment for accrued holiday on termination of employment:
“Employees may, on termination of employment, be entitled to payment for untaken annual leave or for other accrued time off. …
Payment will be based on 1/365th of annual salary for each day’s leave. Any payment will be subject to the usual statutory reductions.”
On the termination of his employment, it was agreed that Mr Connor was entitled to be paid for 40 hours and 42 minutes of accrued holiday, pursuant to regulations 13, 13A and 14 of the Working Time Regulations 1998 (WTR 1998). Using the calculation above, he received less than he would have been paid had he taken the holiday.
Mr Conner brought a claim for unlawful deduction from wages. The Employment Tribunal found for the employer, stating that the rate of pay and calculation were set out in the employment contract and correctly applied.
Mr Conner appealed to the EAT on the grounds that applying calendar days rather than working days reduced the amount of money he was owed and was contrary to the principles of the WTR 1998 and previous case law. His employer countered that, provided there was a ‘relevant agreement’ in place, it could base the calculations on calendar days.
The law
On termination of employment, a worker is entitled to pay in lieu of unused statutory holiday (to which they were entitled to under regulations 13 and 13A of the WTR 1998). The amount paid will be “Such sum as may be provided for … in a relevant agreement“
Where there is no relevant agreement, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined in accordance with the formula (A x B) – C (Regulation 14(3)(b) WTR 1998), where:
(A × B) − C
- A is the period of leave to which the worker is entitled (5.6 weeks per year);
- B is the proportion of the worker’s leave year that expired before the termination date; and
- C is the period of leave taken by the worker between the start of the leave year and the termination date.
Under regulation 16, workers must be paid at the rate of a week’s pay for each week’s leave, with a week’s pay being calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996 (ERA 1996), subject to certain modifications.
Regulation 14 does not state how a payment in lieu of unused statutory holiday should be calculated under a relevant agreement. However, the WTR it must be read in the light of the Working Time Directive (2003/88/EC) (WTD).
The EAT decision
Finding for Mr Conner, the EAT concluded that he had been underpaid. Generally, it said, any payment made in lieu of untaken holiday that was lower than an employee should receive during employment did not comply with the WTR. A relevant agreement could change the basis of the calculation to avoid the default position set out in regulation 14, but it could not undermine this principle.
This decision makes clear that any employment contract clauses that allows an employer to reduce the amount of holiday pay an employee is entitled to receive upon termination if leave has been accrued are unenforceable. An employee must receive the same daily rate for holiday pay, irrespective of whether or not they have taken the leave by the time their employment comes to an end.
Exemption in section 406 of ITEPA 2003 applied to part of a termination payment
Howard-Ravenspine v HMRC [2023] UKFTT 471
In Howard-Ravenspine v HMRC, the Employment Tribunal (ET) ruled that the exemption for injury and disability payments in section 406 of the Income Tax (Earnings and Pensions) Act 2003 (ITEPA 2003) applied to part of a termination payment paid on account of an employee’s illness, despite also being made for other reasons.
Background
The employee had been on long term sick leave and entered into a termination agreement, under which they were paid a lump sum “as compensation for loss of office and termination”. The agreement included a sum to settle a claim under the employer’s permanent health insurance policy.
When it comes to taxing such payments, an exemption is provided by section 406 of the ITEPA 2003, namely:
“A termination (or change) payment or benefit is excepted from tax under section 401 ITEPA 2003 if it is paid wholly on account of:
- an injury to an officeholder or employee, or
- the disability (see EIM13620) of such a person
“Injury” is construed as either physical or psychological injury. Legislation introduced on 6 April 2018 confirmed HMRC’s longstanding view that “injury” includes psychiatric injury but does not include injured feelings.”
HMRC, relying on Horner v Hasted [1995] STC 766, argued that the exemption could only apply if the payment covered injury or disability exclusively. This interpretation also mirrored HMRC’s employment manual.
The ET disagreed with HMRC’s “all or nothing” interpretation of section 401. The purpose of the disability exemption is to exempt from tax any payment which is made on account of an injury or disability, irrespective of whether other payments are being made to the employee as part of the same deal. Where it could be established, as it was here, that some element of the payment falls within the exemption, that element should be exempt.
This case provides welcome clarity on this issue, and it is hoped
Dismissal fair despite several extensions of employment termination dates
Garcha-Singh v British Airways plc [2023] EAT 97
Background
Mr Garcha-Singh was employed by British Airways (BA) as long-haul cabin crew. He went on sick leave in August 2016 with various physical ill-health conditions. On 31 August 2017, he was given notice that his employment would terminate on 5 January 2018. However, he was advised by his line manager that this was “not set in stone” and that he would be supported in the interim, the line manager preferring to think of the termination date as “the date by which he should aim to return to work”.
The extension date was subsequently extended several times to allow Mr Garcha-Singh to return to his job as cabin crew. The last extension; however, was to enable additional ‘without prejudice’ talks to take place.
Between May and August 2018, Mr Garcha-Singh was signed off sick with anxiety, depression, and work-related stress disorder. In July 2018, Mr Garcha-Singh raised a grievance concerning the most recent decision made on 13 June to extend his termination date to 31 July 2018, alleging race and disability discrimination and that BA had caused his current disability. BA treated this as an appeal against the 13 June decision to terminate his employment on 31 July 2018. On 24 October 2018, the appeal was not upheld.
The final extension of the termination date was 21 December 2018. Mr Garcha-Singh brought various tribunal claims for wrongful and unfair dismissal and race and disability discrimination. He contended that the failure to allow him to appeal the 21 December 2018 decision to not extend his termination date further was a breach of contract and outside the range of reasonable responses open to BA.
The ET dismissed all Mr Garcha-Singh’s claims. On appeal. The EAT concluded that BA had not breached its employment contract with Mr Garcha-Singh. BA’s absence management policy (AMP) envisaged a single decision to terminate an employee’s employment and identified the steps to be taken before making that decision. However, it could not and did not identify every step that a reasonable manager might take. It also did not set out precisely how a manager should react to circumstances arising after the termination decision had been made as this would have made the policy unworkable. Furthermore, even if the extensions to the termination dates did amount to breach of contract, it did not necessarily follow that the dismissal was unfair. The Tribunal still had to examine whether the procedure adopted by the employer was in the range of reasonable responses. In this case, the extensions granted were to Mr Garcha-Singh’s advantage. In addition, it was well within the range of reasonable responses not to extend the termination date of 21 December 2018 again as the date had already been moved several times. Furthermore, an occupational health report conducted on 6 November 2018 had concluded that Mr Garcha-Singh remained unfit to fly and no additional information was provided by Mr Garcha-Singh to contradict the report’s findings.
Mr Garcha-Singh also argued that BA was in breach of contract because it had not allowed him to appeal the 21 December 2018 dismissal. However, the EAT concluded that a full and fair appeal had been provided to Mr Garcha-Singh when the original termination notice had been given on 31 August 2017. The 21 December 2018 decision not to further postpone Mr Garcha-Singh’s termination date was not the decision to terminate his employment within the meaning of the AMP; that decision had already been made15 months prior.
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