Month: April 2021

In order to bring an Employment Tribunal claim you will need to enter into ACAS Early Conciliation within three months of your termination date and/or the last date when you believed you were discriminated.  If you do not enter into the Early Conciliation process within time, you will be denied the right to advance any claims.

This process essentially acts as a ‘stop the clock’ on the usual Tribunal time limit until the day that you receive an ACAS Early Conciliation Certificate confirming that the process has completed. 

Where Early Conciliation is not successful you will then have the right to present a claim usually within one calendar month, but this is dependent upon when you registered the claim with ACAS and the termination date and/or the last date when you believed you were discriminated.

In Stratford on Avon District Council v Hughes UKEAT/0163/20, the Employment Appeal Tribunal held that it was not justifiable for extending the time limit where the Claimant had waited for ACAS to send him the Early Conciliation Certificate which resulted in the expiry of the relevant limitation period.

How the initial claim progressed…

Timeline of events in Stratford on Avon District Council v Hughes

• 29^th March 2019 – the Claimant was dismissed

• 25^th June 2019 – the Claimant contacted ACAS

• 2^nd August 2019 – ACAS emails the Early Conciliation Certificate, however the Claimant did not receive this.

• 2^nd September 2019 – the limitation period expires

• 4^th September 2019 – ACAS resends the Certificate to the Claimant after he rang ACAS chasing this the day before, on 3^rd September 2019

• 5^th September 2019 – the Claimant submits his claim, which was three days after time had expired

 

An Employment Tribunal had initially extended the time for the Claimant, on the basis that it had not been reasonably practicable for the Claimant to have presented his claim within time because he needed the ACAS Early Conciliation Certificate in order to lodge the claim.

However the matter went to the Employment Appeal Tribunal and (HHJ Shanks) found this was not correct as the actual “question was whether in all the circumstances it would have been reasonably practicable for the Claimant to have obtained the certificate earlier not whether he behaved reasonably in waiting until 3 September to contact ACAS.” Further, the “concept of ” reasonable practicability involves a heavier onus than just behaving reasonably, but is not to be equated with what is physically possible.”

Sejal Patel, Solicitor, Employment Law Team at Lawson West Solicitors, Leicester comments: 

“This case provides a useful reminder about the importance of complying with Employment Tribunal’s strict time limits. In the above case, a delay of three days still meant the claim was out of time. Therefore it is essential to seek advice and assistance from the point you receive the certificate, or sooner to avoid any uncertainty.”

If you find yourself in a situation and need to know more about employment law time limits, we can help. We offer no-obligation initial appointments. You can contact the team directly by calling 0116 212 1000 or complete our online contact form

In a recent significant case for the care sector the Supreme Court has decided that care workers are only entitled to the national minimum wage (NMW) for the hours which they are awake and that they are working.  The time that a worker is asleep or near their place of work is not considered as working time for the purposes of the NMW.  It has been found that care providers will be expected to agree a flat rate for the duration of the sleep-in shift, provided that the worker is expected to sleep and that they are provided with suitable facilities for sleeping. 

The NMW Act states that workers are to be paid the appropriate NMW rate or the National Living Wage (NLW) rate for their age for each hour of “working time” over a relevant pay reference period.  The law stipulates the rules as to what is considered working times in order to calculate the NMW.  Working time includes when a person is required to be available for work or near their place of work.  However, there is an exception for workers that sleep in, a worker who by arrangement sleeps at or near their place of work and is provided with suitable facilities in order to sleep.  The law states that the time when a person is available includes only when they are awake for the purposes of working. 

The Supreme Court decision

In the recent case of Tomlinson -v- Blake the Supreme Court has confirmed that care workers that carry out sleep-ins are not entitled to receive the NMW when they are asleep.  Even if they are required to sleep on site or called upon at night to carry out work.  Sleep-in workers who are expected to sleep for the duration of their shift are only entitled to the NMW for the hours which they are working and awake. 

What are the penalties of getting the NMW wrong?

Employers which fall foul of the NMW requirements face severe consequences, including payment of the arrears or wages, along with financial penalties of up to £10,000.00 per worker and they also, risk being named and shamed by the Department for Business Energy + Industrial Strategy.

Conclusion

If you are an employer in the care sector it will be necessary to look at the individual agreements and arrangements between the employer and the worker in order to establish whether the NMW will apply.  If the worker is only required to work during emergency calls as in the landmark case, then the NMW will only apply during those emergency responses. 

It does not matter whether the worker is called upon ten times or only once during their shift, the NMW entitlement will only apply to the times when they are deemed to be “working” so if you would like any further guide as to when workers are entitled to the NMW or if you are an employee and believe that you are not being paid the NMW, then please contact us. 

Vaishali Thakerar, Director & Head of Employment, Lawson West Solicitors, Leicester
vthakerar@lawson-west.co.uk  

You may recall in 2018, The Supreme Court delivered its ruling on the landmark Pimlico Plumbers case, upholding previous decisions that a ‘self-employed’ plumber, Gary Smith, was classified as a ‘worker’ with valuable employment rights under UK law (including discrimination protection and holiday pay amounting to £74,000).  

However, in March 2021, the Employment Appeals Tribunal (EAT) subsequently found in favour of Pimlico Plumbers, ruling that the firm did not discriminate against Gary Smith and Mr Smith is not entitled to any holiday pay.

This case has been of particular interest to businesses and organisations who engage people on a self-employed basis – where the employee has total responsibility for their own PAYE/IR35 tax payments – as the impact on a company’s payroll could be significant.

So, what has happened in this latest tribunal case?

The EAT’s Holiday Pay ruling

In the recent case Smith -v- Pimlico Plumbers Limited the Employment Appeals Tribunal (EAT) distinguished the European Court of Justice ruling in the case of King -v- Sash Window Workshop on the basis that King established that a worker is entitled to carry over annual leave which is untaken because the employer refused to renumerate for it.  This did not apply when the leave was actually taken.

In the case of Smith -v- Pimlico Plumbers Limited, the EAT found that when a worker had been allowed to take annual leave but had not been paid for it, they were not permitted to carry over the right of payment for the holiday to future years. This means that Gary Smith wasn’t entitled to holiday pay in subsequent years as he wasn’t permitted to carry it forward. The basis of the EAT’s new ruling centres on the exact contract wording used by Pimlico Plumbers and it is this that has protected them in this case.

This case is likely to be welcomed by employers as there is a range of claims that may be made by workers under King to those for leave that was untaken, rather than to claim for leave that was taken but that were unpaid.  This decision may well be appealed as the matter was determined on a very subtle difference between the entitlement to take annual leave and the entitlement to be paid for such leave.  This is a very complex area of law and as an employer you must ensure that you obtain legal advice in each particular case.

Should you require any further information in respect of holiday pay issues or if you feel that you have not been paid your holiday pay correctly, then please contact Vaishali Thakerar, Director, Employment team at Lawson West Solicitors vthakerar@lawson-west.co.uk 

Employers might like to take this opportunity to review their self-employed and employed contract wording to ensure they have holiday pay clarity and are protected from future claims of this type.

Vaishali Thakerar, Director & Head of Employment, Lawson West Solicitors, Leicester