Employment Law Case Update – July 2024

This month's case digest covers how to compare workers in cases of less favourable treatment, considering different aspects of unfair dismissal claims, the intricacies of holiday pay accrual, and when time spent doing something work-related is not actually working time for the purposes of pay and therefore the National Minimum Wage.

• Worker Status: Less favourable treatment on ground of part-time working
• Unfair Dismissal: Care workers' vaccine preference can't top residents' safety
• Unfair Dismissal: ET made inadequate findings on employer's search for suitable alternative employment
• Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims
• National Minimum Wage: Time spent travelling on employer's minibus to and from place of work is not 'time work'

Worker Status: Less favourable treatment on ground of part-time working

In Augustine v Data Cars Ltd [2024] EAT 117, the EAT held that a part-time taxi driver was treated less favourably by the employer's application of a £148 per week flat rate circuit fee because, applying the pro rata temporis principle, the claimant was:

• paying a higher circuit fee than his full-time comparator when considered as a proportion of his hours worked, and/or
• was taking home a lower hourly rate of pay.

The principle of pro rata temporis means whereby when a comparable permanent employee is employed with specific terms and conditions of employment, the fixed-term employee will be employed with the same terms and conditions of employment, based on a comparison of the period of employment of the comparable permanent employee and the fixed-term employee respectively.

However, because the part-time working was not the 'sole' reason for the less favourable treatment, the imposition of the flat rate fee did not breach the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551. While the EAT preferred the test on causation set out by the EAT (England) in Sharma v Manchester CC [2008] IRLR 336 and Carl v University of Sheffield [2009] IRLR 616 (that the part-time working has to be the 'effective and predominant' cause of the less favourable treatment) it nonetheless applied the test set out by the Inner House of the Court of Session (CSIH) (Scotland) in McMenemy v Capita Business Services Ltd [2007] IRLR 400 (that the part-time working has to be the sole cause of the less favourable treatment) because it recognised the legitimate public interest in having a consistent approach in cases both north and south of the Scotland/England border.

Unfair Dismissal: Care workers' vaccine preference can't top residents' safety

In Masiero and Others v Barchester Healthcare Ltd [2024] EAT 112, the EAT has agreed that a healthcare provider's mandatory coronavirus (COVID-19) vaccine policy did not infringe a group of care home workers' human rights, ruling that they were fairly dismissed because the company had a right to protect its residents.

In particular, the EAT held that the employment tribunal had been entitled to find that:

• the claimants' dismissals were compatible with their rights under the European Convention on Human Rights and the Human Rights Act 1998;
• the respondent's policy did not involve the imposition of a mandatory requirement to submit to medical treatment in abrogation of the claimant's right to free and informed consent;
• the interference with the claimants' Article 8 rights was justified in pursuit of the respondent's aims of (among other things) protecting care home residents' rights to life under Article 2.

Unfair Dismissal: ET made inadequate findings on employer's search for suitable alternative employment

In Birkett v Integral UK [2024] EAT 107, the EAT held that the employment tribunal had made insufficient findings in respect of:

• the respondent's process of searching for alternative jobs, at the time of the claimant's dismissal, and
• the circumstances in which the claimant was unsuccessful for a specific vacancy, for which he had been interviewed.

Both issues were relevant to the fairness of the claimant's dismissal for the purposes of section 98(4) of the Employment Rights Act 1996:

• merely to state a conclusion on a disputed point that there were, for example, no vacancies, without any analysis of, and findings on, the respondent's enquiries, was not sufficient;
• if findings are not made about the basic fairness of the recruitment process, the risk is that it would be open to any employer to absolve itself of liability by offering an interview, without a wider analysis of the fairness for the purposes of Employment Rights Act 1996, s 98(4).

Holiday Pay: EAT considers Coronavirus and Shimizu carry-over claims

In Knight v Off Broadway Ltd [2024] EAT 109, the claimant, a bar manager, brought claims that, in addition to a payment in lieu of holiday accrued in the leave year in which his employment terminated, he was also entitled to carry-over unused holiday from previous years.

The EAT held that the employment tribunal had:

• correctly found on the facts of the case that there were no Covid-related circumstances which entitled the claimant to carry-over unused holiday entitlement under the then in place (but now withdrawn) amendments to the Working Time Regulations 1998, SI 1998/1833 (WTR 1998);
• erred in failing to consider whether the respondent had done sufficient to inform the claimant, in particular, that any unused holiday at the end of the holiday year could not be carried over (see Max-Planck-Gesellschaft zur Főrderung der Wissenschaffen e.V. v Shimizu [2018] All ER (D) 30 (Nov), the principles from which have now been incorporated into the WTR 1998).

HHJ Auerbach noted that in Shimizu the Court of Justice of the European Union referred to the employer being required to ensure that the worker is actually in a position to take the paid annual leave to which he is entitled by encouraging him 'formally if need be' to do so, while 'informing' him in good time that leave not taken during the holiday year will be lost. He said that would be sufficient in the given case to satisfy that obligation will be a fact-sensitive matter for the tribunal.

National Minimum Wage: Time spent travelling on employer's minibus to and from place of work is not 'time work'

In Taylors Service Ltd v Commissioners for HM Revenue and Customs [2024] EAT 102, HMRC issued the respondent (a company providing labour to poultry farms around the country) with a notices of underpayment of the national minimum wage because it did not pay its workers on zero hours contracts for time spent travelling on its minibuses from their home addresses to and from farms. The respondent appealed, first to the employment tribunal which dismissed the appeal, and then to the EAT.

The EAT allowing the appeal, holding that:

• the approach taken by the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] IRLR 466 to the interpretation of the National Minimum Wage Regulations 2015 (NMW 2015), SI 2015/621, regs 30 and 32 also applies to regs 30 and 34 and, accordingly, time spent 'just' travelling is not 'time work' for the purposes of reg 30 unless it is deemed to be such by reg 34;
• as the tribunal in this case had found that the workers were not working in the ordinary sense when on the minibus, and were not deemed to be engaged in time work by virtue of reg 34, the only conclusion open to the tribunal on the facts as it found them to be was that the workers were not engaged in 'time work' for the purposes of NMW 2015, SI 2015/621, reg 30.

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