Employment Briefing – October 2019


Ongoing Government consultations
There are a number of employment-related public consultations running until early October 2019 which, if […]
There are a number of employment-related public consultations running until early October 2019 which, if they lead to legislative changes, will impact most employers. We summarise the ‘need-to-know’ points from these consultations.
Consultation on a new sick pay scheme
The government is currently consulting on a range of measures to reduce ill health-related job losses. The consultation closed on 7 October 2019 and proposals include:
- Introducing a new right to request workplace modifications for all employees suffering from health conditions, not just those who are deemed to be disabled (where the duty to make reasonable adjustments already applies).
- Introducing a sick pay rebate for small and medium-sized enterprises (SMEs) to help them support individuals with disabilities or long-term conditions return to work.
- Pro-rating SSP to ensure that employees can agree a phased return to work without being financially worse off.
- Extending SSP to low earners (it is currently paid only to those who earn more than £118 per week). To avoid low earners receiving SSP at a higher rate than their actual wages, it will be set at 80% of their average weekly earnings. This proposal, if enacted, will benefit up to 2 million low earners currently excluded from SSP.
- Strengthening statutory guidance to support employers to take ‘early, sustained and proportionate steps’ to support sick employees returning to work before they can be fairly dismissed on the grounds of ill health.
- Improving access to occupational health providers by co-funding or introducing vouchers for smaller employers.
Consultation on plans to change the way individuals enforce their employment rights
One of the key recommendations of the Good Work Plan was that HMRC should take responsibility for enforcing basic pay rights (e.g. National Minimum Wage (NMW), sick pay and holiday pay) for the UK’s lowest paid workers, and that the Government should make the enforcement process easier for workers who have had their rights breached.
The UK currently has seven different agencies with responsibility for enforcing employment breaches, as well as the employment tribunal. These agencies include HMRC (which enforces NMW breaches) and the Health and Safety Executive. The government proposes in its consultation that a single enforcement body should be set up, with priority on protecting the most vulnerable workers, to:
- Promote a single recognisable ‘brand’.
- Pool intelligence and, where appropriate, work with the police, immigration officials and DWP, where appropriate.
- Extend state enforcement to enable those who have been underpaid holiday or use an umbrella company to seek redress.
- Support businesses by providing suitable and targeted materials, and by taking a ‘proportionate approach to enforcement.
This consultation closed on Sunday 6 October 2019.
Consultation on addressing unfair flexible working practices
The government has launched a consultation on ‘one-sided flexibility’ following recommendations made in the Taylor Review and by the Low Pay Commission (LPC). The LPC has recommended that new laws should be introduced to protect vulnerable staff. The consultation proposes introducing new rights for workers:
- To be given ‘reasonable notice’ of their work schedules. The consultation seeks views on how much notice is reasonable and whether it should apply to all workers, or if certain employers/sectors (such as the emergency services) need more flexibility.
- To be compensated if their shifts are cancelled or shortened without ‘reasonable notice’. The suggestion is that if a worker’s hours are cancelled with less than a certain amount of notice, the employer would be liable to pay compensation, irrespective of whether the hours are replaced, and set at one of three levels:
- The value of the shift/hours in question
- The worker’s appropriate NMW rate multiplied by the scheduled number of hours cancelled
- A multiple of a worker’s appropriate NMW rate e.g. three times the NMW.
The consultation asks whether compensation should only apply to those workers below a certain income level close to or on the minimum wage, or to those on specific contract types, such as zero-hour contracts.
The consultation ended on Friday 11 October 2019. If these proposals become law, there will be an obvious impact on payroll costs for employers who engage casual or zero-hours workers.
Consultation on sexual harassment in the workplace
The Government Equalities Office has launched a consultation on how best to tackle workplace sexual harassment. The key proposals include:
- Introducing a statutory duty to prevent harassment in the workplace. This would be enforced by the Equality and Human Rights Commission (EHRC and would require employers to take ‘all reasonable steps’ to prevent harassment from occurring. At present, if an employer has taken ‘all reasonable steps’ to prevent harassment this is a defence to a sex discrimination claim. However, currently, there is no legal duty to do so.
- Re-introducing protection against third-party harassment (this used to be enshrined in law before being repealed in 2013). The consultation asks whether one incident of harassment should be enough to trigger liability and whether the employer must actually know about the risk in advance.
- Extending the three-month time limit for bringing discrimination and harassment claims to six months.
- Extending protection for volunteers and interns.
The consultation closed on Wednesday 2 October 2019.
If you would like further information about any of the consultations outlined above, please contact David Smedley or Andrew Rayment.
Gender pay reporting update
A summary of reported data for 2018/19 published by the Government Equalities Office indicates that whilst there has been some improvement to the gender pay gap there is still some way to go.
Key findings of the report are:
- 99% of organisations required to publish GPG data did so (3% missed the deadline).
- 78% of reported median GPGs favoured men, 14% favoured women and 9% of employers reported a median GPG of 0%
- 88% of reported mean GPGs favoured men, 11% favoured women, and 1% of employers reported a mean GPG of 0%.
- The highest gender pay gaps were in the construction, finance and insurance sectors.
- Only 47-57% of employers have published an action plan to tackle their gender pay gap.
Earlier this year the Equality and Human Rights Commission (EHRC) named the six organisations who failed to report their gender pay gap by the April 2019 deadline. It has now reported that following formal investigations opened under section 20 of the Equality Act 2006 all organisations have reported their figures. The organisations who were late to report have entered into formal agreements with the EHRC to report on time for the next five years, facing further action and possible fines if they fail to do so. The EHRC has said that it will now follow up with organisations who submitted implausible data. After initial concerns about the GPG legislation lacking ‘teeth’ it is clear that there will be consequences for those employers who fail to properly engage with the reporting obligation.
Our Employment Team has built up a wealth of experience in helping organisations with their GPG audits and reports. Please contact David Smedley or Andrew Rayment for further information.

Employment Tribunal update
A round-up of Employment Tribunal news and an invite to our next employment Breakfast Briefing. […]
A round-up of Employment Tribunal news and an invite to our next employment Breakfast Briefing.
It is no surprise that, since Employment Tribunal fees were abolished in July 2017, the number of employment claims submitted continues to follow an upward trend (a 26% increase year on year). The recent quarterly and annual tribunal statistics for 2018/19 contain some interesting points:
- Less claimants are using lawyers. 64% of claimants were represented by a lawyer compared to 74% in 2017/18.
- More claimants are representing themselves. 21% had no representative which was up from 17% in 2017/18.
- Average compensation for unfair dismissal and all forms of discrimination (except age) has dropped. The average award for unfair dismissal was £13,700 (although the highest award made in 2018/19 was a staggering £947,000).
- Less compensation awards are being made. There was an overall decrease in the number of awards for discrimination from 136 in 2017/18 to 103 in 2018/19 (this drop in average compensation and actual awards could be related to the fact that fewer claimants are legally represented).
- Notably, sex discrimination claims have risen by 69%, from 5,522 claims in 2017/18 to 9,336 in 2018/19.
- Tribunals are making fewer costs awards than in previous years. Only 209 costs orders were made in 2018/19 compared to 479 in the previous year. Of these, 158 were made in favour of employers and 51 in favour of claimants.
- Between January and March 2019, around a quarter of cases were disposed of through ACAS conciliated settlements, 22% were withdrawn, 11% were struck out and 11% went to final hearing.
Delays
The increase in claims, coupled with funding cutbacks and failure to replace retiring employment judges, has led to delays in cases reaching hearing. Recent statistics show that the average duration of a single claim from inception through to disposal was 33 weeks which is a six week increase on the 2018 statistics. This should be viewed against the fact that the Ministry of Justice target is to dispose of 75% of cases within 26 weeks. The time taken for cases to reach hearing has risen for the fourth year in a row with complex or multi-day claims often being listed for hearing up to a year in advance.
Delays in Tribunal claims are, for now, a fact of life although it is hoped that the situation will improve over time as more employment judges are recruited. In the meantime, the potential adverse impact of delays on legal costs, management time and witnesses’ memories should be factored into overall case strategies. Whilst delays can be frustrating, they can sometimes be used to a tactical advantage.
Invitation to our Breakfast Briefing
Our employment team have experience of assisting employers with employment tribunal tactics and strategy and this is the main topic of our next employment breakfast briefing on Thursday 14 November 2019. At the briefing, we will focus on providing practical and strategic advice on handling Tribunal claims from cradle to grave in order to achieve the best outcomes.
We will draw on recent appeal decisions, legislative developments and our own real-life experiences of the Tribunal system to provide you with a 360◦ update of need-to-know points. You will come away better equipped to deal effectively with claims and answer questions from your board about risk and strategy.
Please click here if you would like to register to attend.

Data subject access requests – do you know the rules?
The Information Commissioner’s Office (ICO) has updated its guidance on timescales for responding to a […]
The Information Commissioner’s Office (ICO) has updated its guidance on timescales for responding to a data subject access request.
The guidance clarifies that, when calculating the one-month response period, the day of receipt is to be counted as ‘day one’ not the day after receipt.
With GDPR now well-established and an increased focus on data privacy and compliance, it is important that employers have procedures in place to ensure that data subject access or rights requests are handled in accordance with the law. This is therefore a good time to train managers on how to recognise and handle requests made under GDPR and ensure compliance with the timescales involved.
As a quick reminder, employers must comply with a data subject access request without undue delay and at the latest within one month of receipt of the request or (if later) within one month of receipt of:
- any requested information to clarify the request
- any information requested to confirm the requester’s identity
- a fee (only permitted in certain circumstances)
Employers should calculate the time limit from the day they receive the request (whether it is a working day or not) until the corresponding calendar date in the next month. If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.
Employers can extend the time to respond by a further two months if the request is complex or it has received a number of requests from the individual. However, the employer must let the individual know within one month of receiving their request and explain why the extension is necessary.
We are often asked whether it is permitted to ask the individual for ID to first confirm that they are who they say they are if the employer is in doubt. The answer to this is, yes, as long as a proportionate approach is used. Advise the individual as soon as possible that more information is needed from them to confirm their identity before responding to their request. The period for responding to the request begins when the employer receives the additional information.
Where employers process a large amount of information about an individual it is acceptable to ask them for more information to clarify their request but this should be limited to information that is reasonably needed to find the personal data covered by the request. If the individual refuses to provide any additional information, the employer must still endeavour to comply with the request by making reasonable searches for the information covered by the request.
Our Regulatory and Employment teams are here to help with any questions you may have.
Please contact David Smedley or Andrew Rayment for further information.

New laws on pregnancy and maternity discrimination on the horizon?
This is something that all employers should have on their radar. The government has indicated […]
This is something that all employers should have on their radar. The government has indicated that it will introduce legislation when Parliamentary time allows and it may announce some of the changes below as part of the Queen’s Speech in October. The key proposals outlined in the Government’s response are
- the ‘redundancy protection period’ to apply from the point the employee informs the employer that she is pregnant, whether orally or in writing (currently employers are required to offer employees on maternity leave who face redundancy any suitable alternative vacancy that exists in priority over other employees also at risk of redundancy)
- the redundancy protection period to be extended for six months once a new mother has returned to work
- the same protections to be afforded to those taking adoption leave
- increased redundancy protection for those returning from shared parental leave.
If these changes are implemented it will be necessary to update maternity, adoption and shared parental leave policies and, importantly, to ensure that managers involved in managing redundancy situations are fully aware of the extended protection.
Please contact David Smedley or Andrew Rayment for further information.

Case Law Update – October 2019
The Harpur Trust v Brazel [2019] EWCA Civ 1402 – How should holiday pay for […]
The Harpur Trust v Brazel [2019] EWCA Civ 1402 – How should holiday pay for ‘part-year’ permanent workers be calculated?
This important Court of Appeal decision challenges the traditional approach to calculating holiday pay for workers on ‘part-year’ permanent contracts.
The case involved a music teacher, engaged by the Harpur Trust on a permanent (year-round) contract to work term-times only. She was paid only for the work that she did during term-time (she did not work at all during school holidays). The question was, how should her holiday pay be calculated?
The Trust had calculated it in accordance with a method recommended (at the time) by ACAS in its guidance booklet ‘Holidays and Holiday Pay’ for calculating the pay of casual workers. Following this guidance, it calculated Ms Brazel’s earnings at the end of each term and paid her based on 12.07% of the figure (nb 12.07% is 5.6 divided by 46.4 (being the number of working weeks in a year) multiplied by 100).
Ms Brazel argued that this was incorrect. She argued that this produced a lower figure than the calculation method set out by the Working Time Regulations 1998 (WTR) and sections 221-224 of the Employment Rights Act 1996 (ERA) which requires a worker’s holiday pay to be calculated as a ‘week’s pay’ for each week of leave. For workers who do not have normal working hours, a week’s pay is deemed to be the worker’s average weekly pay in the 12 weeks before the first day of holiday excluding any weeks in which no remuneration was payable (note that this 12 week reference period is due to be increased to 52 weeks with effect from 6 April 2020).
Ms Brazel argued that there was nothing in the relevant provisions requiring a different approach (such as the 12.07% approach) where, as in her case, the worker does not work a full year. The Employment Tribunal disagreed but its decision was overturned by the Employment Appeal Tribunal so the Trust appealed to the Court of Appeal.
The Court of Appeal dismissed the Trust’s appeal. It held that the WTR made no provision for pro-rating holiday for permanent part-year workers. This was the case even though it produced the following two anomalies.
- Using the 12-week reference period would result in Ms Brazel’s holiday entitlement being more than a full-time worker (in her case equivalent to 17.5% of her earnings).
- A person who worked just one week a year and earned £1,000 in that week could, in theory, take their 5.6 weeks holiday entitlement immediately after their week of work with the holiday pay calculation being based on their earnings in that week (so £5,600). Admittedly, it is unlikely in practice that anyone would have a permanent contract to work just one week a year.
Despite these ramifications, the Court of Appeal held that the WTR make no provision for pro-rating but simply required the straightforward exercise of identifying a week’s pay in accordance with the provisions of sections 221-224 ERA and multiplying that figure by 5.6.
The Court commented, “It may at first sight seem surprising that the holiday pay to which part-year workers are entitled represents a higher proportion of their annual earnings than in the case of full-year workers, but I am not persuaded that it is unprincipled or obviously unfair.
It is important to appreciate that the workers in question are on permanent contracts. It does not seem to me unreasonable to treat that as a sufficient basis for fixing the quantum of holiday entitlement, irrespective of the number of hours, days or weeks that the worker may in fact have to perform under the contract: it is important not to lose sight of the fact that the actual days from which they will be relieved, and the quantum of their holiday pay, will reflect their actual working pattern.”
Walker Morris comment
The Court of Appeal has made it clear that workers on a part-year contract should not have their 5.6 weeks’ statutory holiday entitlement under the WTR pro-rated to reflect the fact that they do not work for the full year. Those employers who have been using 12.07% of earnings as a basis for the calculation of holiday pay for casual workers may wish to seek further advice. Types of employees affected and who might raise requests for back payment include visiting music teachers or sports coaches engaged to work only during term time.
In the meantime, note that the Government has removed references to the holiday pay calculator from its guidance on calculating holiday pay for workers without fixed hours or pay (the relevant page states that the holiday pay calculator has been removed “while the service is under review”).
If you would like further information about this case or holiday pay calculation generally, please contact David Smedley or Andrew Rayment.
Tillman v Egon Zehnder Ltd
The Supreme Court has provided guidance on when it is allowable to sever words from a restrictive covenant in circumstances where, if the words were to remain, the covenant would be void as an unreasonable restraint of trade.
This decision involved an employee, Ms Tillman, who was subject to a number of restrictive covenants in her employment contract which lasted for 6 months following the termination of her employment. In particular, there was a ‘non-compete’ covenant stating that Ms Tillman could not “directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of the Company…….”.
Within one week of leaving her employment with Egon Zehnder, Ms Tillman indicated that she intended to start working for a competitor. Egon Zehnder applied for an interim injunction seeking to prevent her from doing so.
Ms Tillman defended the proceedings and argued that the non-compete clause was an unreasonable restraint of trade and therefore was void. She said that the words in the covenant, “or interested in any business”, prevented her from holding even a minor shareholding in a competitor.
The High Court awarded the injunction against Ms Tillman and she appealed. The Court of Appeal agreed that the words “or interested in” had the effect of unreasonably preventing Miss Tillman from holding a minor shareholding in a competitor. It was irrelevant that Ms Tillman’s stated intention was to work for the competitor (not just take a minor shareholding in it) and that she was arguing the ‘shareholding’ point as a means to avoid being bound by the covenant. Having lost on this point, her ex-employer went on to argue, unsuccessfully, that the offending words (“interested in”) should be severed from the covenant.
On appeal, the Supreme Court agreed with the Court of Appeal that the words “or interested in” meant that the clause was an unreasonable restraint of trade. It then went on to look at whether the offending words could be severed from the covenant to leave the covenant standing.
It considered two previous Court of Appeal decisions on severance, one from 1920 (Attwood) and one from 2007 (Beckett Investment Management Group Ltd v Hall). In Beckett, the Court of Appeal had set out three criteria where (if all three criteria apply) severance may be permissible, as follows:
- The unenforceable provision can be removed without the need to add or modify the wording that remains.
- The remaining terms continue to be supported by adequate consideration.
- The removal of the unenforceable provision does not so change the character of the contract that it becomes a different contract to the one the parties entered into.
The Supreme Court followed this ‘Beckett’ approach. It held that the words “or interested” (which had meant the covenant was an unreasonable restraint of trade) could be severed from the clause. This meant that the injunction originally granted by the High Court was restored although the 6-month restraint period had, by then, passed.
Walker Morris comment
When it comes to restrictive covenants, prevention is always better than cure. We often see employment contracts containing ‘blanket’ restrictive covenants that go further than necessary to protect the business legitimate interests and which would stand very little chance of being successfully enforced. The take-home point is that restrictive covenants need careful thought and drafting. Employers should consider where the risks lie in the event of certain employees leaving and tailor restrictive covenants accordingly. Then, if the covenants do need to be enforced, the employer will be in a good position to do so and the covenants will have far better deterrent-value.
Remember that restrictive covenants should be reviewed and updated in the case of promotion or where an employee is rising rapidly through the ranks. Covenants agreed when the employee was at a junior level may not provide adequate protection as the employee becomes more senior.
If you would like further information about this case or restrictive covenants generally, please contact David Smedley or Andrew Rayment.
Chief Constable of the Police Service of Northern Ireland v Agnew and Others – three-month holiday pay break rule challenged
A decision of the Northern Ireland Court of Appeal has challenged the way in which backdated pay claims are calculated.
The Northern Ireland Court of Appeal (NICA) has handed down a judgment that challenges the rule (set down by the Employment Appeal Tribunal (EAT) in Bear Scotland v Fulton in 2014) that there will be a break in the chain of any series of deductions where a period of more than three months has elapsed between the deductions.
The case involved claims made by over 3,600 police officers and civilian employees against the Police Service of Northern Ireland for unlawful deductions for underpayment of holiday pay. The employees claimed that their holiday pay should have been calculated by reference to normal pay including overtime.
The NICA took the view that the Employment Appeal Tribunal in Bear Scotland v Fulton had been mistaken that a gap of three or more months between deductions would break the series of deductions. It held that there was nothing in the relevant legislation that placed a limit on the gaps between deductions making up a series.
The NICA held:
- That a gap of three or more months between deductions will not break the series of deductions. A claimant can claim for unlawful deductions that arose
- before the three-month gap and form part of the series of deductions.
- If all deductions arose out of the fact that holiday pay was paid as basic pay and did not include overtime/allowances, they are likely to form part of the same series of deductions.
- A series of deductions will not be interrupted by a lawful payment.
- When annual leave is taken, employees do not use up their Working Time Directive (WTD) leave first. There is no requirement for leave from different sources to be taken in a particular order. The NICA disagreed with the EAT in Bear Scotland, which had held that WTD leave was used first. Days of annual leave formed part of a composite whole and it was not possible to allocate days to particular types of leave.
- A daily rate for overtime should be calculated by dividing the number of working days in the four-week leave period (20) by the number of working days in the 12-month reference period, then multiplying by annual pay.
- Normal pay should be calculated based on average pay over a rolling 12-month reference period immediately preceding the period of leave, although this will be fact-sensitive in each case.
This decision is not directly binding on the English, Welsh or Scottish courts but it could be persuasive. This is because the wording in the Employment Rights (Northern Ireland) Order 1996 (ERO) relating to a series of deductions is the same as in the Employment Rights Act 1996.
Walker Morris comment
We expect to see unions referring to this decision to bring pressure in respect of holiday pay claims. However, even if the judgment were to be followed by the courts in England, there is still legislation in place imposing a two-year cap on unlawful deductions claims.
If the NICA decision is appealed, the Supreme Court’s decision would be binding on the whole of the UK.
If you would like further information about this case or how it might affect your business, please contact David Smedley or Andrew Rayment.