Tag Archive: pay

Gender pay gap reporting: what counts as ‘pay’?

Two weeks from today, 5 April 2017, marks the ‘snapshot’ date for which employers who are in scope need to collect the raw data on which to calculate their mean and median gender pay and bonus gaps. Employers will be required to publish information on their gender pay gap by 4 April 2018.

The requirement to assess pay data is the gross hourly rate of pay in the pay period which covers 5 April. Pay is calculated using gross figures, before any deductions for PAYE, National Insurance contributions, pension contributions, student loan repayments and voluntary deductions and takes into account both ordinary pay and bonus pay.

Ordinary pay means basic pay,  allowances, pay for piecework, pay for leave; and shift premium pay. It does not include overtime pay, redundancy pay, pay in lieu of leave, or non-monetary remuneration. 

Bonus pay means as any remuneration that is in the form of money, vouchers, securities, securities options or interests in securities and that relates to profit sharing, productivity, performance, incentive or commission.

These definitions give rise to some grey areas. The draft guidance published by Acas and the Government Equalities Office makes clear that the value of benefits provided under a salary-sacrifice arrangement do not count as ordinary pay; the employer should use the employee’s gross pay after any reduction for a salary-sacrifice scheme.  

The position in relation to pension contributions is still not entirely clear. The guidance says “The amount of an employee’s ordinary pay and bonus pay must be calculated before deductions are made at ‘source’. Employee pension contributions are a deduction, so whether or not an employee makes pension contributions will not affect the gender pay gap calculations” but it is arguable that employer contributions are not a deduction. A salary supplement that an employee receives because they have opted out of a pension scheme would be included in pay.

Benefits in kind are excluded from the definition of ordinary pay. This means that an employer should disregard the value of, for example, a company car provided to an employee. However, car allowances should be included in the calculation, as allowances are included in the definition of ordinary pay. Where an employer provides an interest-free loan to employees, such as a season ticket loan, the value of the loan should not be included as pay.

Should retrospective pay rises be included in the calculation? The regulations allow employers to ignore “any amount that would normally fall to be paid in a different pay period” but this does not cover pay which should have been paid in the relevant pay period but was not. 

Overtime is another grey area. Remuneration referable to overtime is excluded from the definitions of both ordinary pay and bonus pay. This suggests that employers should exclude not only actual overtime pay but also other elements of pay (such as allowances and shift premiums) earned in respect of overtime hours. If so, employers would need to distinguish between what is earned during normal working hours and what is earned during overtime hours. However, such a distinction could be difficult to draw in respect of some elements of pay. For example, how should an employer determine which part of a performance bonus or sales commission relates to work done during overtime hours?

These grey areas are bound to lead to inconsistencies in how employers in the same sector approach their data. Ultimately this risks making comparisons between employers of limited value. The most important consideration for employers may be to ensure that they take a consistent approach internally so they can track their own progress on the gender pay gap year-on-year.



Permanent link to this article: https://www.dlapiperbeaware.co.uk/gender-pay-gap-reporting-what-counts-as-pay/

Holiday pay decision in Lock v British Gas commission case

Kate Hodgkiss, a Partner in our Edinburgh office comments: The employment tribunal has handed down its decision in Lock v British Gas, one of the on-going holiday pay cases, this one concerning commission. Unfortunately the decision does not answer many of the remaining questions following the EAT’s decision in Bear Scotland (see Be Aware 4 November 2014) although it does confirm that commission must be included in the calculation of holiday pay.

The brief facts in Lock are that Mr Lock was employed by British Gas as a salesman, earning a basic salary of under £15,000 but with substantial potential for commission (up to 60% of his overall remuneration). During periods when he took annual leave, he was paid basic salary plus commission earned in previous weeks; on return from holiday, however, his remuneration would be lower as he had not had the opportunity to earn commission whilst absent on leave. He brought a claim for unlawful deductions from wages.

On a reference from the tribunal, the ECJ held that a worker should have commission included in holiday pay. The live issues in Lock were therefore:

  1. To determine the effect of the ECJ ruling and in particular whether the Working Time Regulations (WTR) are capable of being read to give effect to it;
  2. If so, whether the relevant commission scheme operate sin such a way that it effectively compensates for periods of annual leave so that even if the scheme is unlawful no money is due to the claimants;
  3. What is the correct reference period for calculation of holiday pay due;
  4. Whether the principles in the ECJ ruling apply only to the four weeks’ Working Time Directive (WTD) leave or also to the additional 1.6 weeks’ leave granted under the WTR; and
  5. How much the claim is worth.

However, the tribunal went on to deal with only issue one in any detail. In respect of issue four, it was agreed that the decision is relevant only to the four weeks’ WTD leave.

In respect of issue one, the tribunal regarded itself as bound by the reasoning of the EAT in Bear Scotland, but held in the alternative that that it agreed with the reasoning of the EAT in any event. The EAT said that Regulations 16(2) and 16(3) of the WTR should be applied with the inclusion of the words in italics below:

16(2)    Sections 221 to 224 of [the Employment Rights Act 1996] shall apply for the purposes of determining the amount of a week’s pay…subject to the modifications set out in paragraph (3).

16(3)    The provisions referred to in paragraph (2) shall apply-

            (e) as if, in the case of the entitlement under Regulation 13, a worker with normal working hours whose remuneration includes commission or similar payment shall be deemed to have remuneration which varies with the amount of work done for the purpose of section 221.

Section 221 ERA provides that where remuneration varies with the amount of work done, the amount of a week’s pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable in respect of the period of the previous 12 weeks. Presumably the average hourly rate for these purposes includes both basic salary and commission. The effect of the wording read into the WTR is to implement a 12 week reference period; however, it is not entirely clear whether this is settled as the tribunal had said that this issue was to be determined at a later date. It is also not clear precisely how the reference period will work, as commission paid in the 12 weeks before the calculation date will not be paid entirely in respect of hours worked during those 12 weeks; it may be necessary to average the pay over a different period. None of the holiday pay decisions so far have satisfactorily determined precisely how holiday pay should be calculated. There will need to be a further tribunal hearing in Lock to determine how much the claim is worth, which may provide some practical guidance.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/holiday-pay-decision-in-lock-v-british-gas-commission-case/

Government action on holiday pay claims

BIS has announced this afternoon that a statutory instrument is being laid before Parliament to limit back pay in holiday pay claims to a maximum of two years. The limit will apply to claims brought on or after 1 July 2015. Click here for a copy of the press release.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/government-action-on-holiday-pay-claims/

Holiday pay: the verdict

The Employment Appeal Tribunal (EAT) has today handed down judgment in the closely observed holiday pay appeals in Bear Scotland v Fulton and Baxter, Hertel (UK) Ltd v Wood and others; and Amec Group Ltd v Law and others (the UK Holiday Pay Claims). DLA Piper acted for Bear Scotland. The decision of the EAT will lead to higher wage bills for many employers in the future, but the judgment significantly limits the potential for back pay liability.

The decision of the EAT is that many elements of pay which are currently excluded from the holiday pay of many workers must be included. However, any claims in respect of underpaid holiday pay in the past are only possible to the extent that no more than three months elapsed between any such underpayments.

The holiday pay claims arise because of an apparent conflict between UK and European law as to how holiday pay should be calculated and in particular whether elements of remuneration such as overtime and commission must be included. The Working Time Directive (Directive) entitles workers to 4 weeks’ leave but does not specify how pay should be calculated. The Directive is implemented in the UK by the Working Time Regulations 1998 (WTR). Under the WTR workers are entitled to 5.6 weeks’ leave and must be paid at the rate of a week’s pay for a week’s leave. The Employment Rights Act 1996 (ERA) sets out how to calculate a week’s pay; the calculation depends on a number of factors including whether or not a worker has normal working hours.

The effect of the week’s pay provisions is that many common elements of remuneration, such as overtime, commission and bonus are excluded from statutory holiday pay. However, in cases interpreting the Directive, the Court of Justice of the European Union (CJEU) has consistently stressed the need for normal remuneration to be maintained during the period of annual leave. In a 2011 case (Williams v British Airways) the CJEU ruled that (1) workers on annual leave should receive their normal remuneration and (2) normal remuneration entitled a worker to any payment which is intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment. The CJEU held that it is then left to the national court to assess the intrinsic link between the various components making up the total remuneration of the worker and the performance of the task he is required to carry out under his contract of employment. In a subsequent decision, Lock v British Gas Trading and others, the CJEU restated the principle that holiday pay must correspond to normal remuneration and held that commission must be included as otherwise the financial disadvantage suffered might deter workers paid on a commission basis from taking leave.

The UK Holiday Pay Claims concerned whether other types of remuneration, mainly overtime and some travel payments, should also properly be considered normal remuneration and therefore be included in holiday pay.  There were essentially three issues in contention in the EAT:

  1. Whether the elements of remuneration in question fell within the types of payment which the CJEU in Williams said should be included in holiday pay;
  2. If so, whether UK law could be interpreted in order to give effect to that; and
  3. If there had been any underpayment of holiday pay, what constituted a ‘series of deductions’ from wages and in particular whether the series was broken by the employee taking the additional 1.6 weeks’ holiday under the WTR. 

In respect of the three issues, the EAT held as follows:

  1. Non-guaranteed overtime (that is, overtime which the employer does not have to offer, but the employee must work if offered) is part of normal remuneration and must be included in holiday pay, as must any other payments which form part of normal remuneration including shift allowances and comparable payments;
  2. It is possible to interpret UK law in such a way as to produce that result; but
  3. Payment for the additional 1.6 weeks’ leave given by UK law but not the Directive will ‘break’ the series of deductions in any case where there is more than three months between the employee taking the additional leave and taking Directive leave.

In respect of the first two issues, the EAT held that the decisions in Williams and Lock read together represented a settled view of the CJEU as to what payments are to be included in the calculation of holiday pay under the Directive and were a natural development from earlier case law, all of which referred to the requirement for normal remuneration to be paid during holiday.  It had to be presumed that in enacting the WTR the UK Government intended to implement the Directive fully and accurately.

The question of how far back the employees could claim in respect of underpaid holiday pay depended on whether each instance of underpayment formed part of a ‘series of deductions’. The EAT held that there were two requirements for a series of deductions; sufficient similarity to provide a factual link between the deductions, and a sufficient temporal link. On the basis that claims in respect of unauthorised deductions must be brought within three months, the series is broken if more than three months has elapsed between deductions. The EAT further said that the additional 1.6 weeks’ leave provided by the WTR Regulations (Regulation 13A leave) will be the last leave to be taken in any leave year. In practical terms, this means that claims for back pay will stop at the point at which there is more than a three month gap between the 4 weeks’ leave required by the Directive (Regulation 13 leave) and any subsequent Regulation 13 leave taken by an employee. This should mean that in the majority of cases the claims for back pay will be limited to the current holiday year, or in some cases completely extinguished.

What action should employers take now?

  • The immediate effect is that the 4 weeks’ leave required by the Directive (Regulation 13 leave) and the additional 1.6 weeks’ leave provided by the WTR ( Regulation 13A leave) are to be paid at different rates. This will cause some administrative headaches for employers and in the long run the Government may seek to remove the distinction between Regulation 13 and Regulation 13A leave; however, this is unlikely to be a legislative priority before the election. Employers will need to decide in the short term whether to pay the holiday at different rates or equalise up to pay all leave at normal remuneration.
  • Employers will need to consider precisely what needs to be included in the calculation of holiday pay ie what constitutes ‘normal remuneration’.
  • Many employers will need to decide how to deal with existing claims. Unions have already filed a substantial number of claims for underpaid holiday pay, which have been stayed pending the outcome of the appeal cases. The decision of the EAT may provide an incentive to settle claims, as the potential for back pay is now limited.
  • In the longer term, employers will need to look at how they structure working arrangements in order to minimise the increased liability for holiday pay. Options might include offering voluntary overtime instead of non-guaranteed overtime, using bank or agency staff to cover periods of increased demand rather than offering permanent staff overtime, revising commission plans to schedule payments at a time which impacts less on Regulation 13 leave and preventing leave from being taken at certain times of year.


Permanent link to this article: https://www.dlapiperbeaware.co.uk/holiday-pay-the-verdict/

Important Court of Appeal garden leave decision

Tim Marshall a Partner in our London office, comments: The Court of Appeal has today handed down judgment in an important case on garden leave. The decision in Sunrise Brokers LLp v Rodgers extends the impact of the decision of the Supreme Court in Société Generale v Geys and could have implications for how employers deal with the resignation of a key employee to join a competitor.


Sunrise Brokers LLP (Sunrise) is an inter-dealer brokers. Mr Rodgers worked as a derivatives broker under a contract signed in September 2011 for a three year fixed term, terminable by him by twelve months’ written notice given on or after the expiry of the fixed term. The contract contained a garden leave provision enabling Sunrise to place him on garden leave during any period of notice, and six month post-termination restraints. There was provision for any period of garden leave to be ‘set-off’ against the post-termination restraints. In March 2014, he signed an agreement with one of Sunrise’s principal competitors, EOX Holdings Ltd (EOX) to commence working for them in New York in January 2015. On 27 March he informed a director of Sunrise that he was leaving and wanted to leave immediately. He was asked to return to work but refused, left the office and did not return. On 9 April Sunrise’s general counsel told him he should come back to work with a view to agreeing a sensible termination plan, which he again refused. He emailed the company saying that he was relocating to New York and would not start work elsewhere until September 2014, and would agree to remain on garden leave. In light of his continuing absence from work, Sunrise did not pay him in May. Sunrise’s lawyers wrote to Mr Rodgers saying that as he had not given notice in accordance with his contract he remained employed, not in a period of notice and fully bound by his employment contract. Mr Rodgers’ solicitors contended that he had resigned with immediate effect on 27 March. Sunrise indicated that they would be prepared to agree a reduced period of notice terminating on 16 October 2014.

In May 2014 Sunrise commenced High Court proceedings for a declaration that Mr Rodgers remained their employee until 16 October 2014, together with injunctions enforcing his obligations regarding working for a competitor until that date and then until 16 April 2015. The judge allowed the claim, although he declined to enforce the post-termination restrictions beyond 27 January 2015. Mr Rodgers appealed to the Court of Appeal.


The Court of Appeal upheld the High Court decision. As confirmed by the decision in Société Generale v Geys, Sunrise were entitled to choose whether to accept Mr Rodgers’ repudiation of the contract in purportedly resigning, or to affirm it and keep it alive. They had chosen to affirm. Mr Rodgers did not become entitled to terminate the contract due to the non-payment of salary in May as his entitlement to be paid depended on being ready and willing to work, which he was not. Sunrise was not obliged to pay Mr Rodgers up to the termination of his employment on 16 October 2014 as he had not been placed on garden leave, he had simply absented himself from work. Although an injunction should not be granted where the effect would be to compel the employee to continue to work for the employer, there was no rule requiring employers to give an undertaking as to pay which goes beyond their contractual obligation in order to obtain an injunction. The Court relied on a number of factors in upholding the injunction; the fact that Mr Rodgers was only not being paid because he was unwilling to attend work, the fact that it was clearly contemplated when he entered into the agreement with EOX that he might not be able to start until January, and his offer not to work until September. The Court concluded that this was not a case in which the granting of the injunction without the employer paying remuneration would mean that the employee was compelled to work for the employer.

The Court declined to offset the period during which Mr Rodgers remained employed against the period of post-termination restriction. It was common ground that Mr Rodgers could not have objected to a six-month post-termination restriction during which he would not have been paid. The fact that he was subjected to an additional four months unpaid was a consequence of his refusal to return to work; if he had done so, Sunrise would almost certainly have placed him on garden leave, and he would have been entitled to remuneration in addition to set-off of the garden leave against the restraint.


The facts of this case were fairly unusual; as the Court noted, the issue of payment only arose because Sunrise had not invoked the garden leave clause, which will not often be a safe course of action for the employer to take. However, the case does illustrate that when a key employee resigns without giving the appropriate notice, employers should not necessarily rush to invoke the garden leave provision without first considering whether there are alternative options.

The Court noted the unanswered questions which remain following the decision in Geys; whether, in a situation where it is the employee rather than the employer who has affirmed the contract rather than accept a repudiatory breach, the employee can sue for his salary. The decision in this case would seem to suggest that he can, but crucially only where he remains ready and willing to work.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/important-court-of-appeal-garden-leave-decision/

EAT hears holiday pay appeals

Kate Hodgkiss, a Partner in our Edinburgh office, comments: At the end of last week the Employment Appeal Tribunal (EAT) heard complex legal arguments in the appeals in Bear Scotland and Hertel/Amec; better known as the holiday pay cases. The appeals will determine primarily (i) whether overtime should be included in the calculation of holiday pay and (ii) if so, whether employers should be liable for back pay, possibly over a period of several years.

 The EAT had to consider 3 main issues:

  1.  Does Article 7 of the Working Time Directive require overtime to be included in holiday pay?
  2. If so, can UK law be interpreted in such a way to give effect to this?
  3. If holiday pay has been incorrectly calculated as a matter of EU law, does the fact that some holiday pay payments made under UK law will have been lawfully calculated ‘break’the series of unlawful deductions such that claims for back pay are limited?

 The EAT heard arguments on these issues from counsel on behalf of both the employers and employees.

 Article 7

The issue of what should be included in the calculation of holiday pay arises from a decision of the ECJ, Williams v BA. In many cases UK law currently excludes payments such as overtime, commission and bonus from holiday pay. However, the ECJ in Williams said that a worker is entitled, during his annual leave, not only to the maintenance of his basic salary, but also, first, to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided. Following Williams, the question arose what types of payment are ‘components intrinsically linked to the performance of the tasks required under the contract of employment.  In Lock v British Gas the ECJ held that commission should be included.

In the EAT in Bear/Hertel/Amec, lawyers for the employers and for the Government argued that Article 7, as interpreted in Williams, does not require overtime to be included, either because it is not intrinsically linked to the performance of tasks required under the contract where the employer is not required to offer overtime, or because Williams should be interpreted restrictively as only applying to supplementary payments.

Lawyers for the claimant employees, on the other hand, argued that overtime is plainly normal remuneration and should be included.

Interpretation of EU law

UK courts are under an obligation to interpret UK law as far as possible in compliance with EU law. As such, if Article 7 does require overtime to be included, the court needs to examine the Working Time Regulations and Employment Rights Act to determine whether they can be read in a way which gives effect to EU law.

Lawyers for both the employees and the Government argued that UK law can be read in this way, although they were arguing for different interpretations of the EU law (see above). Lawyers for the employers, however, argued that it is simply not possible to interpret UK law in this way; in this respect, they rely on 2 main arguments (i) that employers thought they were complying with the law when excluding overtime from holiday pay and to retrospectively put them in breach of the law would be in breach of the principle of legal certainty; and (ii) it is not possible to read words into the Working Time Regulations in order to give effect to Article 7 as this would make the scheme of the Regulations unworkable.

Series of deductions

The final issue is whether the claims were in time. The claims have been brought under the unauthorised deduction from wages provisions of the Employment Rights Act 1996. A claim may be brought within three months of an unauthorised deduction from wages, or, if there is a series of deductions, within three months from the last in the series. Lawyers for the employers sought to argue that as Williams only affects the 4 weeks’ basic statutory entitlement, each time the employees took the additional 1.6 weeks’ leave provided under Regulation 13A of the Working Time Regulations, they were paid the correct holiday pay and this ‘broke’ the series of deductions. That would limit, possibly even extinguish, much of the liability for back pay. However, the claimant employees argue that there could be a series of deductions linked by a common feature even when the series is interrupted by payments of a different type. 

Interestingly there was very little argument regarding how far back the employees might be able to claim; counsel for the Government suggested that any deductions further back than six years would be out of time but this argument was not developed.

 Where does this leave us?

Judgment is expected in October/November but it is possible that the judge may wish to make a reference to the ECJ. Whatever the outcome, it is also likely that there will be an appeal. This could complicate matters still further, as an appeal in Bear would go to the Scottish Court of Session, whereas an appeal in Hertel/Amec would be to the Court of Appeal. However, the EAT decision may give employers some indication of the direction of travel and may provide some indication whether there is any opportunity to limit liability pending a final determination of the issues.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/eat-hears-holiday-pay-appeals/

December 2013’s review of the year

Sandra Wallace, Partner and Employment group head, highlights the most important legislative and case law developments from 2013 and identifies the key cases to watch out for in 2014.   Remember to use our On the horizon legislation tracker to keep up to date with the further changes to legislation which are expected in 2014 and beyond.



Employment Tribunals

1 February Cap on a week’s pay for statutory awards increased from £430 to £450
  Unfair dismissal compensatory award increased from £72,300 to £74,200
25 June In political affiliation cases the two year unfair dismissal qualifying period no longer applies
29 July One year cap on unfair dismissal compensatory award introduced
  Protection of settlement negotiations from admissibility in unfair dismissal tribunal proceedings introduced
  Introduction of fees regime for employment tribunal claims and new tribunal rules
  Compromise agreements renamed ‘settlement agreements’
7 October New fee remission system in force for employment tribunal fees

Family friendly

8 March Parental leave increased from 13 to 18 weeks
7  April Statutory maternity, paternity and adoption pay rates increased from £135.45 to £136.78 per week


25 June Amendments to whistleblowing legislation to remove good faith requirement and introduce public interest test
1 November

Close of call for evidence on further whistleblowing reform


1 February Cap on a week’s pay for statutory redundancy payments increased from £430 to £450
6 April Period of required collective consultation for 100+ redundancies reduced from 90 to 45 days

Employment status

1 September Employee shareholder status introduced


25 June Obligation for the Government to make an order outlawing caste discrimination came into force
1 October Repeal of third party harassment provisions from Equality Act 2010





USDAW and others v WW Realisation 1 Ltd and others This case involves the redundancy consultation obligations arising out of the closure of Woolworths and Ethel Austin stores between 2008 and 2010.   The EAT ruled that the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. This potentially results in employers needing to collectively consult whenever they propose to make 20 or more redundancies in a 90 day period, regardless of where the employees are based.  This case is however being appealed to the Court of Appeal.

Working time

Neal v Freightliner Ltd


An Employment Tribunal held that a freight worker was entitled to have overtime payments and shift premiums included in the calculation of his holiday pay as they were intrinsically linked to the performance of the tasks he was required to carry out under his employment contract.  This case is being appealed to the EAT.

Employee competition

Coppage and anor v Safety Net Security Ltd The Court of Appeal upheld an order that a former company director pay at least £50,000 following a breach of his post-termination restrictive covenants which prohibited solicitation of any customers of his former employer for a period of six months following termination.
Vestergaard Frandsen SA v Bestnet Europe Ltd The Supreme Court held that a former sales manager was not liable for misuse of confidential information.  The manager had not acquired information while working for Vestergaard and had no implied knowledge of the misuse of information by her new employer.

Transfer of undertakings

Alemo-Herron and others v Parkwood Leisure Ltd

Considering the status of collective agreements following a TUPE transfer, the ECJ decided that under the Acquired Rights Directive it is impermissible for UK courts to adopt a “dynamic” rather than a “static” interpretation.  Where transferring employees’ contracts provide that their terms are to be determined in accordance with collective agreements, the transferee cannot be bound by terms which are collectively agreed after the transfer if it is unable to be involved in the negotiating process.

Crystal Palace FC Ltd v Kavanagh & Ors

In a case which arose out of the dismissal of employees of the company which owned Crystal Palace football club when it went into administration, the Court of Appeal held that the employees were dismissed by the administrator shortly before the business was sold for a valid “economic, technical or organisational reason”. The administrators needed to reduce the wage bill in order to continue running the business and avoid liquidation.


Lockwood v Department of Work and Pensions

The Court of Appeal held that a severance scheme, which paid higher payments to older employees on the basis that they needed more of a cushion than younger employees, was objectively justified.

Cox v Essex County Fire and Rescue Service

In this disability discrimination case, the EAT decided that although the employee had advised that he was suffering from bipolar disorder, the absence of a definite diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

Croft Vest Ltd & Ors v Butcher

The EAT held that an employer who refused to pay for an employee with work-related stress and depression to have private psychiatric counselling and cognitive behavioural therapy breached its duty to make reasonable adjustments.



USDAW v Ethel Austin Ltd (in administration) and another case


The Court of Appeal will consider whether the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. (NB. this is the Woolworths case  – see above for EAT decision).
Lyttle and others v Bluebird UK Bidco 2 Ltd In an application from a Northern Ireland employment tribunal to the ECJ, clarification is sought as to the meaning in the UK’s collective redundancy legislation of the term “establishment” and whether the duty to collectively consult is triggered when 20 or more employees are dismissed at a particular establishment or across the whole of the employer’s business.

Working time

Lock v British Gas Trading Limited and others The ECJ will consider whether the holiday pay of a worker, who receives basic pay and sales-related commission, should be more than just basic pay, even though during holiday periods they are not undertaking work that would entitle them to commission.
Neal v Freightliner Following the Employment Tribunal in 2013 (see above), the EAT will consider if holiday pay must be calculated in a way which takes account of pay for voluntary overtime.


Z v A Government Department & the Board of Management of a Community School;    CD v ST There are currently two cases before the ECJ which will consider whether an mother who has a child via a surrogacy arrangement has pregnancy and maternity rights under EU law.
FOA on behalf of Karsten Kaltoft v Billund Kommune The ECJ will consider whether discrimination on grounds of obesity is prohibited by EU discrimination law.

Gallop v Newport City Council


Judgment is awaited in this case in which the Court of Appeal has considered if an employer’s lack of knowledge prevents the duty to make reasonable adjustments arising where the employer relied on advice from an occupational health adviser that an employee was not disabled for discrimination purposes.

Mba v Mayor and Burgesses of the London Borough of Merton

Judgment is awaited in this case in which the Court of Appeal has considered whether or not an employer’s requirement that all care workers work some Sunday shifts indirectly discriminated against a Christian residential care worker who strongly believed that Sunday should be a day of rest.

Employment law reforms

R (on the application of UNISON) v Lord Chancellor


Judgment is awaited in this case in which the High Court heard an application by UNISON claiming that the introduction of employment tribunal fees is in breach of EU law and contrary to the principle of access to justice.    A similar application to the Scottish Court of Session has been stayed pending the outcome of the High Court case.

R (on the application of Compromise Agreements Ltd) v Secretary of State for Business, Innovation and Skills

An application has been made for judicial review of the statutory cap of one year’s salary in unfair dismissal cases. The application is based on the premise that older people are more likely to be out of work for more than a year and therefore would be eligible to more than a year’s compensation were it not for the new cap.

Permanent link to this article: https://www.dlapiperbeaware.co.uk/december-2013s-review-of-the-year/