Key employment law developments: national minimum wage; holiday pay; data subject access requests

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Summary: Our August blog outlines the key UK employment law developments over the last month. These include cases on the national minimum wage, holiday pay, data subject access requests, discrimination and whistleblowing. We also outline other points of note, including developments on Brexit and gig economy employment status.

Sleep-in workers not entitled to NMW when asleep

The Court of Appeal has held that a care worker who was required to sleep at her workplace and be available to provide assistance when necessary was only entitled to be paid the national minimum wage (NMW) for the hours she was required to be awake for the purpose of working, rather than for the whole of her sleep-in shift. 

The worker was entitled, and positively encouraged, to sleep throughout the shift, whilst keeping a “listening ear” in case intervention was required (which happened rarely).  Overturning the EAT’s decision, the Court held that the “essence” of the arrangement was for the worker to sleep, and this fell within one of the exceptions to the definition of working time for the purposes of the National Minimum Wage Regulations 2015.  The worker was therefore not entitled to be paid the NMW.

Why this matters   

This is a welcome and highly significant decision for employers, particularly in the care sector.  The EAT’s decision, which was reversed by the Court of Appeal, would have required sleep-in workers to be paid the NMW for every hour of their shift, and many care sector employers were facing huge claims for back-payments covering the last six years. However, affected employers would be sensible to continue assessing potential liabilities as the Court of Appeal’s decision may be appealed.

Royal Mencap Society v Tomlinson-Blake


Non-guaranteed and voluntary overtime should be included in calculation of NHS holiday pay

In a claim brought by NHS ambulance workers, the EAT has held that all types of overtime pay should be included in the calculation of the workers’ holiday pay.  Overturning an Employment Tribunal’s decision, the EAT said that this includes voluntary overtime, as well as non-guaranteed overtime. 

The EAT said that the overarching principle when calculating the four weeks' paid leave under the Working Time Directive is that holiday pay should correspond to “normal remuneration”. This is to ensure that workers do not suffer a financial disadvantage when taking leave, which may deter them from exercising their holiday rights.  All overtime pay constitutes “remuneration” – whether it could be classed as “normal” depends on whether the worker has a sufficiently regular and settled pattern of voluntary overtime. 

Why this matters      

Although this case involved NHS workers, with a particular focus on the NHS’s contractual Terms and Conditions of Service, the discussion in relation to holiday pay under the Working Time Directive has general significance for employers. The decision reiterates that voluntary overtime payments should be included in the calculation of holiday pay (for at least the four weeks’ holiday required under the Working Time Directive), provided such overtime forms a sufficiently regular and settled pattern of work.

We understand that this decision is being appealed.

Flowers and others v East of England Ambulance Trust


Court of Appeal gives further clarity on disclosure of “mixed data” in data subject access requests

The Court of Appeal has given guidance on when to disclose information containing the personal data of more than one individual (“mixed data”) in response to a data subject access request (“DSAR”).

The High Court had prevented an expert’s report concerning a GP’s fitness to practice being disclosed to the patient named in the report (“P”) in response to a DSAR by P.  The report also contained the GP’s data, and the GP had not given consent to its disclosure. In overturning the High Court’s decision, the Court of Appeal held that:

  • Contrary to previous Court of Appeal case law, the starting point in a mixed data case should not be in favour of the objector; instead, a balance should be struck between the requester’s and the objector’s competing interests, and the presumption in favour of withholding disclosure should only be applied in a tie-break situation; and
  • P’s interests in seeking the disclosure should not necessarily be devalued just because the information may assist him in litigation. If the data controller has concerns that the information may be disseminated more widely it can ask for appropriate undertakings from the person who is making the DSAR.

Why this matters       

Although this case involved a DSAR under the Data Protection Act 1998, it is still relevant under the new GDPR/Data Protection Act 2018 regime. Employers face an increasingly onerous task when complying with DSARs under the new regime and, following this Court of Appeal decision, they should think carefully before refusing requests for disclosure of “mixed data” on the basis of lack of consent from a third party. 

B v General Medical Council


Objective justification of discrimination arising from disability includes consideration of part-time working 

The EAT has clarified the requirements for objective justification of “discrimination arising from a disability” claims under s.15 Equality Act 2010 (“EqA”).

In this case, a disabled GP was dismissed from his medical practice on the grounds of capability after going on long-term sick leave. The Tribunal had originally held that the dismissal was procedurally unfair because of the employer’s failure to consider the recommendations of a medical report which advised that he could return to work on a part-time basis. However, for the purposes of s.15 EqA, it had concluded that although the dismissal also constituted “unfavourable treatment” arising in consequence of the employee’s disability, it was justified as the employer had a legitimate aim in dismissing him (in this case, ensuring that the best possible care was provided to patients).

The EAT overturned the Tribunal’s decision regarding s.15 EqA, finding that the Tribunal should have considered part-time working as a less onerous way of the employer achieving its legitimate aim, just as the Tribunal had considered part-time working in relation to the unfair dismissal claim. 

Why this matters       

This decision highlights that there are sometimes similar considerations that should be taken into account in determining whether a disabled employee’s dismissal is unfair and determining whether it is also discriminatory. It is also a useful reminder to employers that even if they have a legitimate aim for dismissing a disabled employee on long-term sick leave, they must consider the proportionality of such an approach - that is, whether it is a reasonably necessary means of achieving the aim, or whether there is a less onerous or discriminatory means of doing so.

Ali v Torrosian and others


Allegations can amount to “protected disclosures” for the purpose of whistleblowing claims

In order to benefit from whistleblower protection, claimants must satisfy various requirements to demonstrate that they have made a “protected disclosure”. This includes the requirement that they have disclosed “information”. Previous guidance from the EAT suggested that protected disclosures could not merely voice a concern or raise an allegation. 

In this Court of Appeal case, an employee brought automatic unfair dismissal claims on the basis that she had made protected disclosures.  The Employment Tribunal and EAT dismissed her claims, finding that the disclosures were “allegations” and not “information” as required under whistleblowing legislation. 

Although it dismissed the claimant’s appeal, the Court of Appeal held that the categories of “information” and “allegation” are not mutually exclusive.  The Court said that whether an allegation amounted to a qualifying disclosure would depend on whether there had been a disclosure which, in the claimant’s reasonable belief, tended to show one or more of the six types of malpractice set out in the whistleblowing legislation. This would depend on whether the claimant's statement had enough factual content and was sufficiently specific, having regard to the context in which it was made.

Why this matters       

The decision that there is no dichotomy between information and allegations may make it easier for a claimant to satisfy the requirements for obtaining whistleblower protection; however, employers may still wish to argue, where appropriate, that allegations made by claimants are not sufficiently factual or specific.

Kilraine v London Borough of Wandsworth


Round up of other developments

‘Vanishing’ dismissals:  The Court of Appeal in Patel v Folkestone Nursing Home Ltd has held that if there is a successful appeal against a disciplinary dismissal under a contractual disciplinary procedure, employers and employees are bound to treat the employment relationship as having remained in existence throughout. 

Brexit:  Following the European Union (Withdrawal) Act 2018 receiving Royal Assent on 26 June 2018, the UK government published its White Paper on the future UK-EU relationship on 12 July 2018.  The White Paper includes proposals for the UK to maintain current employment laws and workers’ rights, and for the UK and the EU to commit to the non-regression of employment law standards.

Gender Pay Gap:  Independent data analysis suggests that one in six employers may have misreported their gender pay gap in the first round of reporting since the Gender Pay Gap Reporting Regulations came into force in April 2017.

Right to work:  The EAT has held in Afzal v East London Pizza Ltd that an employee who was dismissed due to his employer’s (mistaken but genuine) belief that he did not have a continued right to work in the UK should have been given the right to appeal his dismissal.  When faced with the threat of criminal or civil penalties for employing illegal workers, employers may be tempted to make ‘knee-jerk’ decisions regarding their employees – this decision is a reminder of the risks of doing so.

Gig economy:  In Leyland v Hermes Parcelnet Ltd, an Employment Tribunal has found that Hermes couriers were workers, despite being classed as self-employed in their contracts.  Although all employment status cases are highly fact sensitive, this decision comes shortly after the recent Supreme Court judgment in Pimlico Plumbers, which decided that the plumber in that case was a worker rather than self-employed.  

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