December 02, 2019

U.K. Employment Law Update: Holiday Pay for Part-Year Workers, Disclosures in the Public Interest and Vegetarianism as a Philosophical Belief

Holiday Pay for Part-Year Workers

In Harpur Trust v Brazel [2019] EWCA Civ 1402, the Court of Appeal considered how the holiday pay of a part-year worker should be calculated.

Ms Brazel was employed as a visiting music teacher by the Harpur Trust on a permanent, zero-hours contract. She mainly worked during term time, taking her holidays out of term time. Harpur calculated her holiday pay at the end of each term, based on 12.07% of her total earnings in each term, which was in line with U.K. government guidance.

Ms Brazel claimed that her holiday pay should not be prorated in this way and should instead be based on her average earnings over a 12-week period prior to the holiday being taken. Harpur argued that this would give Ms Brazel an unfair windfall as it would result in her receiving holiday pay at the rate of 17.5% of her earnings, while full-year workers were only entitled to holiday pay at the rate of 12.07% of their earnings.

The Court of Appeal agreed with Ms Brazel. While it acknowledged that this meant that she would be treated more favourably than a full-year worker, it found that this was not obviously unfair or unjust. It was key that Ms Brazel was on a permanent contract; the number of hours, days or weeks that she actually worked was not relevant.

Although the full scope of this case is yet uncertain, what is clear is that employers currently using the 12.07% approach to calculate holiday pay for their part-year workers should review and revise their practices as soon as possible with a view to curtailing any ongoing exposure. They should also consider seeking legal guidance on any potential retrospective liability.

Whistleblowing: Was a Disclosure in the Public Interest?

In Okwu v Rise Community Action [2019] UKEAT/0082/19, the Employment Appeal Tribunal (EAT) considered whether a whistleblowing disclosure needed to be in the public interest, or whether it was sufficient for the person making the disclosure to have held a reasonable belief that it was in the public interest.

Ms Okwu worked for a small charity. Under her contract, she was initially subject to a three-month probation period which the charity extended due to performance concerns. Upon the extension of her probation, Ms Okwu wrote to the charity raising various concerns, including about how the charity handled sensitive and confidential data about clients. After receiving this letter, the charity terminated her employment citing the performance concerns.

Ms Okwu brought a whistleblowing claim in the Employment Tribunal (ET), arguing that she had been dismissed because she had made protected disclosures that were in the public interest. The ET ruled that Ms Okwu’s claims related to her own contractual position and therefore were not in the public interest, and that therefore her disclosures were not capable of giving rise to a whistleblowing claim.

On appeal, the EAT found that the ET had failed to consider that Ms Okwu may have had a reasonable belief that her disclosure was in the public interest. Given that her allegations were about the protection of sensitive client data of vulnerable people, the EAT found it hard to see how Ms Okwu’s disclosure would not – in her reasonable belief – be in the public interest. The case was sent back to the ET for reconsideration with the new guidance in mind.

This decision highlights the subjective nature of whistleblowing disclosures. Employers should ensure that every complaint is considered carefully and acted upon promptly and appropriately.

Is Vegetarianism a Philosophical Belief Protected by U.K. Anti-Discrimination Legislation?

In Conisbee v Crossley Farms Limited and others 3335357/2018, the Employment Tribunal considered whether vegetarianism could be considered a philosophical belief (and therefore a protected characteristic) under U.K. anti-discrimination legislation.

Mr Conisbee, a vegetarian, was employed for five months at a hotel owned by Crossley Farms. He alleged that his colleagues had subjected him to distressing incidents for being vegetarian, acts that he said amounted to unlawful discrimination on the grounds of philosophical belief. The parties did not dispute the fact that Mr Conisbee was a vegetarian, or even that he may have been subjected to the acts alleged. The question was whether vegetarianism met the definition of a philosophical belief or was merely an opinion or viewpoint.

The ET concluded that vegetarianism is not a belief that is protected under U.K. anti-discrimination legislation. It found while vegetarianism is a lifestyle choice that should be respected, it fails to meet two necessary requirements: (1) It cannot be described as relating to a weighty and substantial aspect of human life and behaviour, and (2) the fact that there are various reasons for being a vegetarian (lifestyle, health, diet, concern about animal welfare, climate and personal taste) means that there is a lack of clear cogency and cohesion to the belief. Mr Conisbee therefore did not have grounds to bring a claim of discrimination on the grounds of philosophical belief.

The ET also mentioned that veganism (as opposed to vegetarianism) did have a clear cogency and cohesion to its belief. It is possible therefore that in the future vegetarianism may be considered to be a characteristic that is protected under U.K. anti-discrimination legislation. Watch this space!

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