Employment Bulletin – July 2019

Tesco employee wins premium overtime pay battle

A Tesco employee was entitled to premium overtime pay despite an agreement between the supermarket and trade union that stated otherwise.

The employee had been employed by the store in a security role for four years when he was offered a job as a CCTV operator at another branch.

A letter from his manager read: "I am pleased to offer you the role of CCTV Operator at ... Your contract will be 36.5 hours and we will guarantee you at least 12 hours of overtime each week ... and an 8-hour Sunday shift paid at a rate of 1.5."

This amounted to 20 hours overtime, to be paid at the premium rate of time-and-a-half.

He was later told that his terms and conditions were to include those contained in "Partnership Agreements" negotiated between the employer and the trade union.

A negotiation between Tesco and the union took away the obligation to pay overtime premiums, apart from work on Sundays.

This meant the pay rate of 12 of the employee's overtime hours had been reduced from time-and-a-half to regular time. He brought a claim for unlawful deduction of wages.

The Employment Tribunal ruled in favour of Tesco, accepting that the Partnership Agreement had been incorporated into the employee's contract.

This was overturned at the Employment Appeal Tribunal. It ruled that the Partnership Agreement only related to voluntary overtime.

The employee had an obligation to work the 20 hours overtime, as stated in his letter of employment, and so they were not covered by the Partnership Agreement.

Mothers and fathers 'face increasing discrimination at work'

There has been a rise in the number of both mothers and fathers facing discrimination at work after returning from parental leave.

Figures from a survey of employment lawyers, conducted by Direct Line, reveal that more than 70% said there had been an increase in cases where a woman was sacked while on maternity leave.

A similar number reported that a new mother's hours were reduced when she returned to work.

More than 80% said there had been an increase in non-disclosure agreements, or "gagging orders" being used by employers following disputes relating to maternity or pregnancy.

Many respondents said there had been an increase in the number of women demoted after returning from maternity leave.

It wasn't just mothers who were being discriminated against.

There was an increase of almost two thirds (63%) in the number of men being demoted after taking paternity leave.

There was also a 61% increase in the number of claims from men who had been passed over for promotion while on paternity leave.

A spokesman for Direct Line said: "It is concerning that we are seeing an increase in mums and dads being seemingly penalised as a result of spending time with their children.

"Employers and employees have a responsibility to educate themselves about their rights, which could help to reduce the rise of discrimination claims and ensure parents have reasonable expectations."

Ambulance staff entitled to have overtime included in holiday pay

A court ruling in a dispute between ambulance workers and the NHS could affect employers across all sectors when it comes to factoring overtime into holiday pay.

The dispute centred on whether ambulance staff were entitled to have an average amount of their voluntary overtime pay included when calculating their holiday pay.

The Employment Tribunal ruled in favour of the NHS Trust, stating that only mandatory overtime should be included. This is defined as time worked when an emergency situation meant workers could not leave their post at the scheduled time.

However, voluntary overtime, such as extra or longer shifts being taken, was not included.

The Employment Appeal Tribunal overturned that decision and ordered that voluntary overtime should also be included in holiday pay.

The Court of Appeal upheld that decision.

Dave Prentis, general secretary of Unison, which supported the ambulance workers in their case, said: "Before this judgment, NHS workers who did regular overtime or often worked well beyond their shifts saw a drop in their pay whenever they took a well-deserved break. Leave calculations that weren't based on the extra shifts and hours they did week in, week out meant many were considerably out of pocket."

The ruling could have an impact on both the private and public sector in future disputes over calculating holiday pay.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

Parental leave is not equivalent to statutory maternity leave

Two recent cases involving fathers taking paternity leave have highlighted a defining difference between parental leave and a mother's statutory maternity leave.

One male employee who worked for a technology firm sued for sex discrimination after his employers insisted he should not be paid at the same rate as mothers on statutory maternity leave.

A similar case saw a policeman claim sex discrimination because shared parental leave was not paid at the same rate as that of a female police officer on maternity leave.

The male police officer was entitled to 14 weeks' shared parental leave paid at the statutory rate. Female officers on maternity leave were entitled to full pay for the equivalent period.

Both male workers were unsuccessful with their claims.

The rulings highlighted the actual purpose of statutory maternity leave was:

(a) to prepare for and cope with the later stages of pregnancy

(b) to recuperate from the pregnancy

(c) to recuperate from the effects of childbirth

(d) to develop the special relationship between the mother and the newborn child

(e) to breastfeed the newborn child

(f) to care for the newborn child.

This leave is to allow the mother time to recover physically and emotionally after giving birth.

Although parents are entitled to leave to be at home with their newborn child, it is not an equivalent to the rest time allowed to mothers after giving birth and is not entitled to the same rates of pay.

Social worker was asked 'how long would this disabled thing go on'

A social worker has won her discrimination claim after a drawn-out dispute with her employers in which she was asked, "how long would this disabled thing go on".

The employee worked for a County Council from 1999. She suffered a foot injury in 2014 and lost some mobility.

A series of complaints led to her being suspended in 2015. She was given a written warning and demoted from her role as team leader.

She took much of the following year off sick to have an operation. During this time, an occupational health report was carried out and found that the employee was "not disabled" but could benefit from a footrest under her desk.

The employee attended a meeting with her line manager and an HR advisor. She was told that she would not be re-instated to her role as team leader. She explained that she could return to work but not take on duties which required too much mobility.

The tribunal heard that the relationship between the employee, her line manager and the HR advisor were already strained at this stage.

The employee returned to work on a phased basis, but again needed to take several months off sick due to her injury. She was told there would be a formal investigation as per the council's absence management policy (AMP), a formal procedure to consider adjustments for a disabled employee.

A meeting between the employee, her line manager and the HR advisor was held where another phased return to work was discussed.

The rocky relationship continued and at a further meeting the line manager asked the employee how long "this disabled thing" would go on.

Eventually the employee was told she would be dismissed from her role, as that was the way to "open the door to redeployment opportunities" within the council.

The employee brought claims of disability discrimination, and the Employment Tribunal ruled in her favour.

The Judge, speaking of the numerous meetings held, said: "The effect was to violate her dignity or at least to create an intimidating and hostile environment."

The level of compensation was set to be decided at a separate hearing.