Snippets of HR law including: ‘new’ holiday pay calculator, changes to bank holiday May date, ET decision providing protection to workers under TUPE and a new report indicating that individuals working from home for more than two and half days a week have poorer relationships with their colleagues.

Government publishes new guide on holiday entitlement

The government has updated its guidance on holiday entitlement. It explains how to work out holiday for staff that start or leave part way through the year. It doesn’t specifically mention term time workers  but does make it clear that workers who are in employment for a full leave year are entitled to 5.6 weeks’ annual leave.

It has also published an Excel holiday calculator which looks as though it replicates the useful online holiday calculator that was removed following the decision on term-time workers in Brazel v Harpur Trust. This is a handy tool, although it only works out an individual’s holiday entitlement based on 5.6 weeks.

Change in 2020 May bank holiday date

In order to mark the 75th anniversary of VE Day in 2020, the government has decided to move the early May bank holiday, which is usually scheduled for the first Monday in May, to Friday 8 May.

Organisations will need to plan accordingly.

Tribunal finds that TUPE protection extends to workers as well as employees

An employment tribunal in Dewhurst v Revisecatch Ltd and City Sprint has held TUPE protects workers as well as employees.

The Judge’s reasoning (which is not binding on any other tribunal) is that the Acquired Rights Directive requires TUPE to be interpreted liberally. The definition of 'employee' in TUPE is ‘an individual who works for another person whether under a contract of service or apprenticeship or otherwise...’ The words 'or otherwise' must be taken to add something to the normal definition of 'employee', and hence cover workers too.

If this decision is appealed and upheld – it will be a game changer. We’ll keep you posted.

Member States can limit carry over of holiday due to sickness to four weeks

The Court of Justice of the European Union has recently held that Member States can limit carry over of holiday to four weeks if someone is too ill to take it during the leave year. Those countries that allow additional holiday to be carried over into the next leave are free to impose conditions.

The UK has not amended the Working Time Regulations 1998 to expressly allow for carry over of holiday if someone is too ill to take it during the leave year. However, UK tribunals have accepted (based on previous European case law) that carry over is limited to four weeks unless employers provide more generous carry over provisions in their employee’s contracts.

To find out more about carrying over holiday please click here to see our FAQs.

Employee awarded £2 million compensation for invention that netted his employer £24 million

In some circumstances employees can obtain compensation to reward them for inventions they discover whilst working for an employer. If they are successful, the award has to be paid by their employer.

In Shanks v Unilever, the Supreme Court said that an employee was entitled to compensation for a system he invented to measure the glucose concentration in blood, serum or urine, the patents for which had made the employer net benefits of around £24 million. This discovery was of outstanding benefit to the employer and the employee was entitled to 5% of the outstanding benefit, amounting to £2 million.

ICO publishes detailed guidance on special category data

The ICO has recently published new guidance on special category data.

The GDPR singles out some types of personal data as likely to be more sensitive, and gives them extra protection. This includes personal data revealing an individual’s racial or ethnic origin, their political opinions, religious or philosophical beliefs or their trade union membership. It also covers genetic data and biometric data (where used for identification purposes), data about a person’s health or their sex life and data about their sexual orientation.

Special category data has to be treated with greater care because collecting and using it is more likely to interfere with an individual’s fundamental rights and freedoms, or expose someone to discrimination.

This guidance explains the rules that organisations must follow before processing special category data.

Report indicates that remote working can make workplace relationships more difficult

A report published by Nuffield Health* has reviewed published literature examining the associations between remote working and stress, wellbeing, health and productivity. These drew upon over 7,000 individuals and looked at organisations of all sizes and across a number of different sectors.

The report suggests that remote working can provide employees with the flexibility to juggle work and home life demands and can help organisations to attract and retain talented staff. However, while it was linked to positive wellbeing, existing research wasn’t conclusive on the impact on levels of stress or productivity.

The report also indicated that spending more than two and a half days per week working remotely was linked to deterioration in the quality of workplace relationships. It also said that not everyone was suited to working from home and it recommended that organisations take into account individual circumstances and personality traits before granting home working requests. Working from home requires discipline, the ability to separate home and work life (as it’s easy for this to blur) and resilience.

*registration required to access report

Employment tribunal reforms are coming

Organisations that have defended cases in the Employment Tribunal will be aware that the system has been ‘creaking’ for some years. It can be difficult to obtain information or to progress matters and delays are common.

The Presidents of the Employment Tribunals in England and Wales and Scotland have acknowledged this and have set out improvements to the system.

Specifically:

  • The existing case management system is in the process of being replaced with a modern system that “should be up and running across all tribunal centres by the end of the year”. Going forward, this system will also be used as a common platform through which the whole process will be managed including issuing and responding to claims, making applications to judges. Electronic materials will also be able to be uploaded and handled and orders and judgments issued.
  • A new system is being introduced (which has been trialled in other locations) and there will also be centralised new customer service centres.
  • Staff levels are increasing. The number of judges has increased and there will be a further drive to recruit new judges in Scotland plus, around 350 non legal members are in the final stages of appointment and should be ready to sit in the New Year. There’s also £2m set aside for this financial year to recruit additional staff and pay for overtime.
  • The tribunals are also part of the HMCTS reform programme which is being rolled out gradually and is set to transform the way in which claims are litigated. This may include “novel” online dispute procedures, better use of email and text communications, audio-recording of hearings, fewer but improved building, video hearings etc. But these are in the longer term.
  • They are also consulting about whether to introduce legal officers who will be able to carry out delegated functions to relieve judges of routine interlocutory work.