UNISON-supported legal victory secures new holiday rights for all workers

 Supreme Court judgment guarantees minimum paid annual leave

All workers in the UK will now receive the same minimum level of paid annual holiday leave, regardless of how many hours they work, following a landmark legal judgment by the Supreme Court today (Wednesday).

The case, Harpur Trust v Brazel & UNISON, was taken by music teacher Lesley Brazel. She argued her employer was wrong to give her fewer days of annual leave than the legal minimum because she only worked during the school term.

UNISON got involved in the Brazel case because of its implications for thousands of school staff employed on term-time only contracts. The situation had previously been confused because of the absence of any government guidance on their holiday rights, says UNISON.

Thanks to the judgment, it will no longer be possible for employers to argue staff who don’t work all year are only entitled to holiday based on the hours they work. Today’s decision is also good news for anyone working irregular hours or on zero-hours contracts, says the union.

From now on, all workers will be due the same legal minimum of 5.6 weeks (28 days for full-time employees), even if there are months during the year when they don’t work. The Supreme Court judgment upholds a previous decision taken by the Court of Appeal in 2019.

Commenting on the judgment, UNISON general secretary Christina McAnea said: “This important decision means that anyone, no matter when or how they work, will now be due the same legal minimum of annual holiday.

“Teaching assistants or other education employees might only be contracted to work when schools are open, but they’re also sometimes required to do their jobs at other times.

“Today’s decision clarifies the law and says that annual leave taken by someone who works less than a full year can no longer be pro-rated to that of a colleague employed all year round.

“The government’s failure to provide guidance in this area has left workers in limbo with unscrupulous employers all too keen to take advantage. Once again this shows unions as a force for good and yet another example of how they strive to improve the lives of working people everywhere.”

Notes to editors:
-The Supreme Court judgment ensures leave must be paid at the rate of an ordinary week’s wages (or if pay varies every week, then an average of all the weeks worked in a year). Annual leave calculations are based on weeks, as a person can work a full week or part of one. The law says that someone working a full year is entitled to at least 5.6 weeks of annual leave (28 days for anyone working full-time hours in a week and this can include the eight bank holidays). The judgment means that an employee working all year, but say, for just two days a week is entitled to 11.2 days a year (2 x 5.6 weeks, so 2.24 weeks or 11.2 days).

 
-UNISON intervened in the case in 2018, ahead of a hearing at the Court of Appeal the following year. The case had previously been through an employment tribunal and employment appeal tribunal. The Harpur Trust applied to the Court of Appeal for permission to appeal. UNISON successfully led the arguments at the Court of Appeal that all workers are entitled to a minimum of 5.6 weeks of annual leave under statute, and this should be paid at the rate of an ordinary week’s pay. The Supreme Court has now upheld this decision and its judgment is here https://www.supremecourt.uk/cases/uksc-2019-0209.html

-UNISON is the UK’s largest union with more than 1.3 million members providing public services in education, local government, the NHS, police service and energy. They are employed in the public, voluntary and private sectors.

Philosophical Belief Discrimination

Interesting.... (no known relation)

Philosophical Belief Discrimination

"Can an employer discriminate on grounds of philosophical belief where the employee is the only person to hold such a belief?

No, held the EAT in Gray v Mulberry.

Ms Gray worked for Mulberry. She refused to sign a standard contract clause assigning copyright in her work to her employer, fearing it would give them ownership over a novel and screenplay she was writing (even though the contract was amended to exclude them). She was eventually dismissed.

She claimed her belief in the sanctity of copyright law was a philosophical belief and thus a protected characteristic. The Employment Appeal Tribunal, after considering the necessary limbs for establishing a philosophical belief, held that the tribunal was entitled to conclude that the belief lacked sufficient cogency to qualify under the Equality Act 2010.

Of more interest, the EAT held that even if it was wrong, there could be no indirect discrimination because Ms Gray was (as far as the evidence went) the only person known to hold such a belief. Accordingly there could be no disadvantaged group, as she was not part of any group. Thus her indirect discrimination claim had to fail. Permission has been granted to appeal to the Court of Appeal". hat tip www.danielbarnett.co.uk 

"Sleep-in shifts judgment is a huge mistake"

This judgement is bad news for hundreds of thousands of low paid care workers (including my
niece).

Being paid not even the national minimum wage for work is simply a disgrace. I hope UNISON lawyers can find a way forward on this.

If not we need to campaign to force employers to pay. Local authorities can play a role in this as well as unions. See UNISON press release below. 

"The legal decision today (Friday) not to count sleep-in shifts as working time is wrong, and is at odds with legal precedents and a common sense understanding of what counts as work, says UNISON.

Today’s Court of Appeal judgment in favour of Mencap overturns a previous ruling at an employment appeal tribunal in April 2017.

UNISON took the initial case to an employment tribunal on behalf of care worker Claire Tomlinson-Blake. It argued that sleep-in shifts should count as working time, and should be paid at hourly minimum wage rates or higher.

The union argues that most care workers on sleep-in shifts aren’t sleeping. Most nights they have to get up to care for people, are on constant call, and are not free to come and go from their place of work.

Commenting on the case, UNISON general secretary Dave Prentis said: “This judgment is a mistake, but let’s be clear where the fault lies. The blame for this sorry state of affairs that’s hitting some of the country’s lowest paid workers must be laid at the government’s door.

“Ministers are so consumed by Brexit that they’re ignoring huge problems around them. Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly.

“Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people. With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can.

“That’s why it’s such a disgrace that workers have been paid a pittance for sleep-ins – with some getting just £30 for a ten-hour shift.

“As a society we should value care staff and the work they do, but unfortunately we don’t. After this judgment who could blame care workers for leaving in their droves.”

As a result of the judgment, UNISON is considering an appeal to the Supreme Court.

Notes to editors:
– Last autumn the government introduced the social care compliance scheme. This aims to ensure that companies and charities providing care services to the elderly and vulnerable adults settle the back-pay owed to staff for sleep-in shifts that haven’t been paid at minimum wage rates.
– Most workers have not yet received any of their backdated wages, and it’s not clear what today’s ruling means for staff owed money.
– More information on UNISON’s position on the social care compliance scheme is available here.

Employment Court closes since it has run out of money

It would seem that this Tory led Government is intent on turning our Country into some sort of banana republic.  The employment law newsletter by Daniel Barnett reports :-

"For those practitioners with cases due to be heard at London (East) Tribunal in the next couple of weeks, be aware you may experience difficulties.

The tribunal is sending out letters postponing hearings on the basis that it has "reached the full extent of the budget allocation for this financial year and, as a result, there is no remaining judicial resource available to hear your case."

It would seem that all cases listed for a hearing before the end of the financial year (4 April) will have to be cancelled since the Tribunal has ran out of money. Many people might have waited months if not years for these hearings. Who knows when they will be heard again?

Once again, it shows that you cannot reply on the law to protect you at work. There is only the unions. 

When the law really is an Ass

Michael Harris at Left Foot Forward is spot on here with his analysis about the recent twittergate debacles. Paul Chambers and Tory Cllr Gareth Compton are stupid, arrogant and thoughtless - but not criminals.

"Even free speech fundamentalists agree with US Justice Oliver Wendell Holmes’s point that free speech would not protect an idiot who shouted fire in a crowded theatre and caused a panic. Though as one of the most ardent free speech campaigners alive today, Aryeh Neier, points out in Index on Censorship magazine (“Radio Redux”):

“… the stress on circumstances is crucial. If the theatre were empty at the time, there would be no panic and, therefore, in Holmes’s judgement, no basis for punishing the false shout of fire.”

English law now seems to suggest that merely to shout fire is enough to initiate a prosecution – which is utterly chilling for free expression".

Such hard cases make for bad legal outcomes.  The UK Justice system is in danger of making itself a laughing stock over this issue.