The end of 2013 left some interesting tribunal decisions which are now in the process of being appealed.
The key ones we will be watching will be;
Neal v Freightliner Ltd and Lock v British Gas Trading Ltd – both cases are looking at whether contractual commission payments should be included when calculating average pay for holiday pay reasons. This issue has been in the news most recently in light of the John Lewis discovery that they had to pay out over £40 million to their staff as they had incorrectly calculated their holiday pay.
In the Neal case a comparison was made between UK and EU law. As members of the EU all UK law must be interpreted and implemented in line with EU directives. The EU Directive states that workers holiday pay should include a workers basic salary and any inclusive payments that are intrinsically linked with the work they undertake, such as compulsory and voluntary overtime and commission payments. At present most businesses in the UK will only pay the basic salary and therefore when this case comes to appeal, the result could have a large impact on UK Businesses. We will keep you up to date as to the outcome of this case. We at this point, advise that all businesses take care to ensure that all time keeping records are accurate and up to date for overtime, and commission. Also, make provision for the possible need to pay retrospective under-payments.
However, if the ruling is not overturned and this becomes law, it will only apply to the 4 weeks statutory holiday allocated by EU law, not to the 5.6 weeks that UK law allocate.
CD V ST – this discusses the issue that mothers who are having a child through surrogacy arrangements are not given the same rights in maternity, and adoption leave. At present women who require leave to care for a baby that they have responsibility for (intended mother), through a surrogacy arrangement have to split a 14 week period between themselves and the surrogate. With the introduction of shared parental leave coming into play from April 2015 it will be interesting to see how this case moves forward.
Walker V Innospec Ltd and Others – In this case the debate here is that the Equality Act 2010 does not adequately protect people in civil partnerships, when it comes to pension entitlements. EU law allows for couples of civil partnerships to accrue the same benefits as married couple’s in a company pension scheme. The matter is currently being appealed, and again with the changes to civil partnership and marriage coming into force in 2014 the law here may also change. We will keep a watchful eye on this.
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