This is our selection of the recent developments which we think will impact on HR practice.

  1. Discrimination & diversity: Report of the Commission on Race and Ethnic Disparities

The Commission on Race and Ethnic Disparities, set up by the Prime Minister in 2020 to identify racial disparities and inequalities in the UK, has published its report.

The Report by the Commission on Race and Ethnic Disparities made a number of recommendations to address racial disparities and inequalities in the UK, including:

  • to advance fairness in the workplace by developing resources and evidence-based approaches readily available to employers
  • to investigate what causes existing ethnicity pay disparities by requiring the publication of a diagnosis and action plan for organisations that voluntarily publish ethnicity pay figures - the Department for Business, Energy and Industrial Strategy will produce guidance for employers to draw on
  • to challenge racist and discriminatory actions by funding the Equality and Human Rights Commission to use its compliance, enforcement and litigation powers to address policies or practices which cause racial disadvantage or are caused by racial discrimination
  • to improve the transparency and use of artificial intelligence by publishing guidance on applying the Equality Act to algorithmic decision-making and requiring transparency from public sector bodies when it is used.

Practical point

In order to help achieve inclusivity, and to better focus on understanding disparities and outcomes for specific ethnic groups, the report recommends that the term “BAME” should not be used.

The report has been widely criticised for downplaying institutional racism in the UK.

  1. Discrimination: religious belief

The Court of Appeal ruled that the removal of a Christian non-executive director (NED) from office for speaking in public against homosexuality and same-sex couple adoption was not discriminatory.

Mr Page, a practising Christian, was an NED of an NHS trust and also sat as a lay magistrate on family cases involving adoption decisions. He believed it wasn’t "normal" for a child, or in their best interests, to be adopted by a single parent or same-sex couple. After he was reprimanded by the Chief Justice for refusing to allow a same-sex couple to adopt a child, this was reported in the press, and it was clear that Mr Page had spoken to reporters about his views on same-sex adoption.

When the trust found out about this, he was warned that public expression of his views could undermine confidence that he would exercise his judgement impartially and he was told to inform the trust of any further media interest. However, he continued to give media interviews and failed to inform the trust, and his term of office as an NED was not renewed.

Mr Page brought claims of direct and indirect discrimination on the grounds of his religious beliefs. A tribunal dismissed all his claims, and found that the trust had taken action against Mr Page not because he was a Christian, or because he held the traditional family belief, but because he had expressed this belief and his views about homosexuality in the media in circumstances which justified the action taken. He appealed to the EAT and subsequently to the Court of Appeal, which both concluded that the tribunal was entitled to find that the trust had not acted unlawfully.

Practical point

This decision highlights the important distinction between a person's religious beliefs and the manner in which they express those beliefs. Employers may take action where an employee expresses their beliefs in an inappropriate manner, provided they conduct a fair investigation and disciplinary process.

This case also highlights the ongoing tension between religion and sexual orientation in discrimination claims in which the trend continues to be that the former gives way for the latter.

  1. Holiday pay

The Employment Appeal Tribunal has ruled that workers are not entitled to carry over a right to holiday pay where they were permitted to take holiday but were not paid for it.

Mr Smith worked for Pimlico Plumbers Ltd for over five years. He subsequently brought tribunal claims, including for unpaid holiday pay that had accrued over those years. He claimed that although he had been allowed to take, and had taken, holiday, he had not been paid for these.

In a Court of Justice of the European Union (CJEU) case (King v Sash Window) the Court held that workers who were denied the opportunity to take holiday can accumulate leave and carry it over to subsequent years and are entitled to payment in lieu on termination.

Mr Smith’s holiday pay claim was dismissed by the EAT because it was presented out of time. The EAT also ruled that the CJEU's decision was not concerned with holiday that was taken but unpaid, and there was nothing to suggest that the carry-over rights in respect of holiday that is not taken applied to holiday that the worker had taken even if that had been unpaid.

Practical point

This case provides welcome clarity that employers do not have an ongoing potential liability in relation to unpaid holiday which has been taken by workers over previous years.

Where claimants have brought their claim out of time, and have sought to show it was not reasonably practicable to bring their claim in time because of ignorance of the true legal position, they have rarely succeeded. The EAT's comments on the 'reasonably practicable' test in cases of deliberate concealment as to the true legal position by an employer appear to suggest that the claimant’s particular circumstances, including even their level of intelligence, will be relevant where an employer has sought deliberately to conceal the claimant's legal rights from them. This may not be the end of the matter though as we understand that permission has now been granted for an appeal to the Court of Appeal.

  1. National Minimum Wage - ‘sleep-in’ shifts

The Supreme Court has ruled that sleep-in care workers are not entitled to the national minimum wage (NMW) while asleep.

Ms Tomlinson-Blake, a care support worker employed by Mencap, provided care to two individuals with learning disabilities during overnight ‘sleep-in’ shifts. She had no duties as such, except to have a "listening ear" while asleep and to attend to emergencies. But these were infrequent - there had only been six occasions in 16 months where overnight intervention had been necessary. Ms Tomlinson-Blake received an allowance for the whole sleep-in shift plus an hour’s pay and brought a claim for the NMW for the full duration of her sleep-in shifts.

The Supreme Court ruled that workers on sleep-in shifts are entitled to have their hours included in the NMW calculation only when they are “awake for the purposes of working”. During this time, they were “available for work” (rather than carrying out “actual work”) meaning that they were entitled to NMW.

The Supreme Court also overruled two important appeal court decisions: a case in which it was found that workers were working throughout the night shift, even though the work was intermittent and they were permitted to sleep (British Nursing Association v Inland Revenue) and another which found that a nightwatchman who was responsible for answering the phone and dealing with security alarms on an overnight shift had been held to be working throughout the shift, even though it was very rare that he was not able to sleep (Scottbridge Construction Ltd v Wright).

Practical point

This decision is very significant for employers in the care sector. That said, given that the Court overruled the two appeal court decisions, it will also be significant for businesses outside the care sector which rely on workers sleeping over.

The Supreme Court made it clear that not every worker who is permitted to take a nap between tasks is a sleep-in worker and, depending on the facts, the worker may be working as opposed to being available for work, even if the work is intermittent.

  1. Equal pay claims: comparators

The Supreme Court has held that retail employees can use employees at their employer’s distribution depots as comparators for their equal pay claims.

The Court had to decide whether female workers in Asda’s retail stores could compare themselves with men working in separate distribution depots for the purposes of equal pay claims, on the basis they were in "comparative" employment.

The Supreme Court concluded that they were in comparative employment for these purposes, even though they are not based at the same establishment.

Practical point

This decision is the conclusion of a preliminary step in the litigation. In the next stages of these claims, the tribunal must consider whether the claimants perform work of equal value to that of their comparators and if so, whether there is some other reason for the difference in pay, beyond sex discrimination.

Asda Stores Ltd v Brierley & Ors