What did we get up to last month?
Holiday pay has been high on the agenda this month with many clients contacting us to ask about the implications of the ruling on their business. We reported in our previous bulletin that we thought it was likely that part of the judgment would be appealed, namely the EAT’s finding that a gap of three months or more between underpayments of holiday pay would break the series and mean that the earlier payments were unrecoverable by the worker. Well, it has now been confirmed that Unite, who brought the claim on behalf of its members, will NOT appeal this finding. A spokesperson explained: “We don’t want to bankrupt businesses; going forward it is about ensuring employees are paid their fair share and working with employers to ensure they get their house in order.”
Although we expect that future cases may well decide to take the point to the next appeal court, for now at least the unlawful deductions limitation remains good law and will reduce most employers’ exposure to claims for unpaid holiday pay going back for many years.
Our HR Breakfast Club on the topic of TUPE was once again very well attended and we received some great feedback such as “As ever, another well organised and very well delivered session – thanks”. Many thanks to all who attended and participated. Our next Breakfast Club will be on the subject of Shared Parental Leave – we haven’t decided on the dates as yet but look out for your email invitation which will circulate in the New Year.
We enjoyed this blog post written in response to a parliamentary question raised by an MP in relation to workers’ entitlements to paid toilet breaks. Seemingly straightforward employment questions can have some surprising outcomes.
Any new cases to be aware of?
Just one important one this month:
The EAT has confirmed that in a redundancy situation, a woman on maternity leave is entitled to be offered suitable alternative employment at the point when the employer becomes aware that her role is redundant or potentially redundant. In Wainwright v Sefton Borough Council, the Council carried out a restructure which involved combining two senior roles (which were carried out by Mrs Sefton and a male colleague) into a new role of Democractic Services Manager (DSM). The new role was created in June 2012, and Mrs Sefton and her colleague were told that they were at risk of redundancy in July 2012, when Mrs Sefton was on maternity leave. The Council gave both Mrs Sefton and her colleague the opportunity to apply for the DSM role through a competitive interview process. Mrs Sefton was not successful in this process and the role was offered to her colleague. Mrs Sefton was put in a redeployment pool, but she wasn’t offered any alternative roles, nor did she show interest in any. She was subsequently given notice of termination by reason of redundancy.
Mrs Sefton brought a claim under section 10 of the Maternity and Parental Leave Regulations 1999 and argued that the Council had breached its obligation to offer her suitable alternative employment by offering the DSM role to her colleague rather than her. She contended that her dismissal was automatically unfair as a result. The EAT upheld her claim: the obligation on an employer to offer an employee who is at risk of redundancy while on maternity leave suitable alternative employment is an absolute obligation, even if that employee is not the best person for the job. Further, the obligation arises as soon as the employee is at risk of redundancy; the Council had sought to argue that it would have offered Mrs Sefton suitable alternative employment had any arisen when she was in the redeployment pool, but the EAT held that was too late. The DSM role existed at the date that Mrs Sefton and her colleague were put at risk of redundancy, it was suitable alternative employment and therefore Mrs Sefton should have been offered the role in preference to her colleague.
Some employers struggle with the idea that women on maternity leave are automatically entitled to be offered suitable vacancies, even if they are not the strongest candidates for the role. However, as this case highlights, it is a strict obligation on employers and failing to comply will usually result in a finding of automatically unfair dismissal.
