The ESSENTIAL Guide to Holiday Pay – 8:30am Tuesday 22 November 2016, Nantgarw

We would like to invite you to our FREE seminar. Places are limited and we expect them to fill quickly. To secure a place please email admin@p4b-law.co.uk

You will know how many questions arise from the topic of holiday pay, which is without doubt a legal minefield. These following questions and many more will be addressed at our forthcoming seminar.

1. Do bonus payments need to be calculated as part of holiday pay?
2. Does compulsory overtime need to be calculated as part of holiday entitlement?
3. How do I calculate holiday pay for an employee leaving after long-term sickness absence?
4. Do I have to pay my casual worker, freelancer or consultant holiday pay?
5. Can an employee who is on holiday and then goes sick take their holiday at a different time?
6. What is rolled up holiday pay and is it legal?
7. Does holiday pay accrue during notice periods and notice paid in-lieu?

At the Seminar we will be discussing the effect of the most recent holiday pay cases and what these mean to both you and your clients. There will also be an opportunity to ask questions of our team of specialist employment lawyers and all delegates will receive a free detailed handout.

Venue: The Conference Centre, Ty Dysgu, Cefn Coed, Parc Nantgarw, Cardiff, CF15 7QQ 

8:30am Tea and Coffee : 8:45am Seminar starts : 10:00am Questions  : 10:15am Event close

The ACAS code of practice and SOSR dismissals

The Acas Code of Practice on Disciplinary and Grievance Procedures Code contains recommendations on how to deal with disciplinary matters and grievances. In a successful unfair dismissal case at an employment tribunal, failing to follow the Code can often result in a ‘fine’ for the employer – an uplift of up to 25% on the compensation which they must pay to the employee. The Code explicitly states that it is applicable to dismissals for conduct and performance and that it is not applicable to dismissals for redundancy or where a fixed term contract expires without renewal. However, the Code does not state whether it applies to dismissals made for some other substantial reason (SOSR) and so this has always been unclear.

In the recent case of Phoenix House Ltd v Stockman, Ms Stockman was dismissed for an SOSR reason. Following Ms Stockman putting in an unsuccessful grievance concerning her treatment during a restructure and receiving a written warning for an incident of misconduct, the employer maintained that the employment relationship had broken down irrevocably and dismissed her. The Employment Tribunal held that the employer’s decision to dismiss had been unreasonable and also said that the employer had not followed the ACAS code of practice, meaning that Ms Stockman was entitled to an uplift on her compensation. The Tribunal reasoned that if the ACAS code was interpreted sensibly, it should also apply to SOSR dismissals.

The employer appealed the case, and the EAT agreed that the dismissal was unfair but disagreed with the uplift awarded. The Employment Appeal Tribunal (EAT) held that there should be no 25% uplift to an unfair dismissal award for dismissals made for SOSR for breakdowns in the working relationship. This case follows Holmes v QinetiQ Ltd, in which it was held that the ACAS code does not apply to dismissals for genuine ill health where there is no issue concerning poor performance.

This news may be welcomed by employers but the Phoenix case also emphasises that it can be difficult to dismiss an employee for an SOSR reason, especially a breakdown in working relations or a personality clash, and that this should be seen as a last resort. It is important to note that although the uplift is not applicable to SOSR dismissals, certain aspects of the Code still are, for example giving the employee a fair hearing, the right to be accompanied and the right of appeal.

On 29 July 2013, new employment tribunal fees came into force. The major change was the introduction of fees but there are other changes which employers should be aware of.

The ET1 form, on which a claim is made, has been revised and when submitting the ET1 by post (as opposed to online) an additional form must be submitted alongside it which states whether the claim is being made on behalf of one person or more than one person; this information is needed to calculate the fee which is due to the tribunal. The new ET1 also has a part to fill in for cases where the Respondent was not the Claimant’s employer; this situation may arise when a Claimant argues that they were discriminated against during a recruitment process. In discrimination cases, the Claimant can also state what they would like to happen to mitigate the effect of the discrimination on them.

There is also a new version of the ET3 form, on which a response to an ET1 is made. The ET3 now asks the Respondent whether they have a disability and need assistance with the claim; this question was previously only asked of the Claimant.

A new “sifting” stage has been introduced to claims. A tribunal judge will review the paperwork before the hearing to ascertain whether or not the claim has a reasonable prospect of success. It is expected that this will avoid weak claims getting to tribunals.

Case management discussions and pre-hearing reviews will be combined into one preliminary hearing.

Alternative dispute resolution will be strongly encouraged by tribunals wherever practical and appropriate.

Rules relating to interest on unpaid tribunal awards will change. Instead of interest becoming payable 42 days after a judgement, interest will be payable from the day after judgement is given, unless the full amount is settled within 14 days.

Tribunals will have the power to make detailed costs assessments in situations where costs are over £20,000. They may also order a party to pay a deposit in respect of a specific allegation (rather than in respect of the whole allegation as was the situation previously). This deposit must be made in order to continue with their claim and is generally required because the tribunal considers that the likelihood of the party having to make a pay-out after the tribunal is fairly high.