Gowling WLG's employment, labour & equalities experts bring you the latest top five employment law developments that may affect your business.

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  1. Could the long-hours culture be discriminatory?
  2. Agency Workers Regulations - term by term comparison required
  3. On-call - standby time at home requiring quick response is 'working time'
  4. Redundancy and pregnant employees - trump card not extended but written reasons for dismissal tweak
  5. The numbers to know - April changes to compensation limits and statutory pay rates

And in case you missed it, also see our summary of the Government Response to the Taylor 'Good Work' Review resulting in four public consultations: employment status, increasing transparency, agency workers and enforcement of employment rights.

1. Could the long-hours culture be discriminatory?

Does a workplace culture of long hours risk breaching the Equality Act 2010? Can an expectation or assumption that a disabled employee would regularly work late amount to a provision, criterion or practice (PCP) triggering the duty to make reasonable adjustments? Maybe.

The Court of Appeal (CA) in Carreras v United First Partners Research has confirmed that an expectation that a worker will work late does not have to be presented as an instruction to cause a disadvantage. If the disabled employee can establish the existence of a long-hours culture, this may be enough to amount to a 'practice' under the Equality Act 2010.

In the case before the CA, the employee suffered a serious bike accident following which he was affected by physical symptoms such as dizziness, headaches, fatigue and difficulty concentrating, which constituted a disability. Prior to his accident he had regularly worked long hours, typically 12 hours a day finishing at 9pm. In the six months following the accident he worked no more than eight hours a day, thereafter increasing this to around 11 hours a day but finishing by 7pm. He came under pressure from his employer to work later, which progressed to an assumption that he would do so, regularly being asked 'when' he was working late.

The employee claimed that his employer had failed to make reasonable adjustments in relation to the requirement to work long hours. In this case, the employee was not alleging that he had been explicitly ordered to work in the evenings, or subjected to other explicit pressures which had the effect of depriving him of any real choice; rather it was that it had been made clear by a pattern of repeated requests that he was expected to do so, which in turn created a pressure on him to agree.

Initially the Employment Tribunal dismissed his claim, stating that they could find no requirement to work long hours and therefore no PCP which placed the disabled employee at a substantial disadvantage. However, the CA has agreed with the Employment Appeal Tribunal (EAT) that the fact that the employee felt obliged to work late was enough to establish a PCP, triggering the duty to make reasonable adjustments. The CA agreed that a 'requirement' could, depending on the context, represent no more than a strong form of request.

Long-hours culture: What can employers learn?

To amount to a PCP, working late does not have to be presented to the worker as an instruction: in practice, workplaces can put pressure on employees to conform, even if there is no written rule or direct management instruction.

This does not mean that an employer can never ask a disabled employee to work late. However, employers should think carefully about the impact of requests to work late on the employee's disability and whether it would be a reasonable adjustment for a disabled employee to work only his or her contractual hours.

As ever, context will be everything, but employers should be warned that working cultures that actively encourage and reward long hours, whether explicitly or implicitly, could amount to a PCP with implications for the duty to make reasonable adjustments for disabled employees.

A long-hours culture may impact those with not only physical but also mental health disabilities. For more listen to our podcast Managing Mental Health in the Workplace.

2. Agency Workers Regulations - term-by-term comparison required

The EAT in Kocur v Angard Staffing Solutions Ltd, found an employer breached the Agency Workers Regulations 2010 (AWR) in providing an agency worker with fewer enhanced contractual days' holiday and shorter paid rest breaks than comparable permanent employees, despite the agency worker receiving a higher hourly wage. The EAT rejected the argument that the agency worker's higher rate of pay offset his inferior holiday entitlement - the AWR require a term-by-term comparison not a package approach.

In this case, the agency worker received a rate of pay of £10.50 per hour, whereas a comparable permanent employee was paid £9.60. After being in post for 12 weeks, the agency worker complained that both the agency and the end user were in breach of the AWR. In particular:

  • the agency worker was given a one-hour break for each eight-hour night shift but was paid for only half an hour, whereas direct recruits were paid for the entire hour; and
  • the agency worker was entitled to 28 days' annual leave compared to direct recruits' 30.5 days.

He also complained of other matters, such as the provision of a swipe card and membership of a fitness centre.

While the tribunal upheld the access to facilities claims, it rejected the complaints in relation to rest breaks and holiday. The tribunal accepted that there was a disparity in relation to these terms but that this was 'compensated for' by the higher hourly rate.

On appeal, the EAT held the AWR require a term-by-term rather than a package approach. The agency or the end user cannot offset a failure to confer a specific entitlement with a higher rate of pay:

  • Rest breaks: the failure to pay for the full hour was a breach of the AWR. The agency worker was, in effect, paid only £5.25 for his rest break, whereas his employed colleagues were paid £9.60.
  • Holiday entitlement: the failure to confer the additional 2.5 days' leave was also a breach which could not be 'compensated for' by the agency worker's higher hourly rate.

Interestingly, the EAT went on to consider whether it was possible for the end user to grant an agency worker 30.5 days' leave but only pay for 28, while maintaining the higher rate of pay. As the AWR do not prescribe the mechanism by which the agency worker must receive parity in relation to annual leave, such an arrangement is possible in principle. While a rolled-up holiday pay arrangement is not possible in relation to the statutory minimum holiday entitlement, it can be used for additional contractual holiday leave as was the case here.

However, the EAT emphasised that any rolled-up holiday pay arrangement would have to be transparent, and the agency worker would have to be able to ascertain precisely what aspect of his or her remuneration relates to annual leave. In this case, the payment said to compensate for the 2.5 additional days' leave was neither transparent nor readily comprehensible, and so there was a breach of the AWR.

3. On-call - standby time at home requiring quick response is 'working time'

The issue of whether on-call time counts as working time, under the Working Time Directive, has been long debated. What has been clear for some time under EU law is that 'on-call' time constitutes 'working time' if the employee is required to be in the workplace rather than at home, even if the worker is asleep at the workplace for some or all of that time.

The Court of Justice of the European Union (CJEU) in the Belgian firefighters case of Ville de Nivelles v Rudy Matzak, has now held that 'stand-by' time which a worker spends at home while being duty-bound to respond to calls from their employer within eight minutes, which significantly restricts the opportunities for other activities, must be regarded as 'working time'.

Last summer, the Advocate General suggested that it is the quality of the time that is spent rather than the precise degree of required proximity to the place of work that is of overriding importance in this context. However, the CJEU reaffirmed the importance of proximity to the workplace. In this case, the obligation for the firefighters to remain physically present at the place determined by the employer (their homes) and the "geographical and temporal constraints" resulting from the requirement to reach his place of work within eight minutes, limited the opportunities which the firefighters had to devote themselves to their personal and social interests. The situation of the firefighters in this case could therefore be distinguished from that of a worker who, during his stand-by duty, must simply be at his employer's disposal inasmuch as it must be possible to contact him.

While being on employer premises during on-call time is not required, the proximity of the worker to the workplace at a place determined by the employer (even if it is the worker's home) is still a key factor

A 2014 case in the UK, Truslove and anor v Scottish Ambulance Service, considered the positon of relief ambulance paramedics who sometimes worked on call at night, away from their base station. On such occasions, they were contractually required to take accommodation within a three-mile radius of the ambulance station at which they were working and to achieve a target three minute response time. The EAT sitting in Scotland held such on-call periods amounted to working time.

For workers undertaking standby duties where they are required to be contactable by remaining at home or an employer-designated location to facilitate a rapid response time, they will be undertaking 'working time' with implications for:

Working week

The Working Time Regulations (WTR) limit a worker's average weekly working hours to 48, unless the worker has signed a valid opt out agreement or falls within one of the limited exemptions. If none of those exceptions applies, employers should ensure they have requisite opt out agreements in place or comply with the 48 average hour working week limit.

Rest breaks

Under the WTR, subject to certain exceptions, a worker is entitled to a 20 minute unpaid rest break after six hours and a daily rest period of at least 11 consecutive hours in each 24 hour period. While workers can opt out of the 48 hour working week limitation, it is not possible to opt out of rest breaks, although they may be varied by a collective or workforce agreement. Workers can voluntarily forego a rest break, but employers who refuse to allow the daily rest break for workers wishing to take it (or compensatory rest for those falling under the 'special cases' or shift working exemptions), will be in breach of the WTR.

4. Redundancy and pregnant employees - trump card not extended but written reasons for dismissal tweak

Back in September the Advocate General, who advises the CJEU, recommended that in the context of a collective redundancy, the dismissal of pregnant workers may only occur in "exceptional cases" not connected to the pregnancy and when there is no plausible possibility of reassigning them to another suitable post (Porras Guisado v Bankia SA).

As we reported in September, if the CJEU followed the AG Opinion, the special protection in relation to the suitable alternative employment trump card currently afforded to those on maternity leave would need to be extended to the period from the beginning of their pregnancy, (whether the employer already knows they are pregnant or not) to the end of the maternity leave.

No trump card

On 22 February, the CJEU disagreed with the Advocate General and instead held that employers are not required to afford priority treatment to a pregnant worker in the context of a collective redundancy exercise. While the Directive prohibits the dismissal of workers during the period from the beginning of their pregnancy to the end of their maternity leave, barring 'exceptional cases' not connected with their condition, 'exceptional cases' include a collective redundancy scenario.

Unless prohibited by national law an employer is able to dismiss a pregnant worker in the ordinary course of a collective redundancy exercise, for reasons unconnected with the worker's pregnancy. Under EU law, pregnant workers are afforded special protection in terms of redeployment in a collective redundancy situation.

In this respect, the existing position under UK law remains unchanged. If a woman's role is redundant while on maternity leave, she is entitled to be offered suitable alternative employment by her employer or associated employer if such a vacancy exists. Her right effectively trumps that of any other employee whose role is redundant at the same time (regulation 10 Maternity and Parental Leave etc. Regulations 1999 (MPL). However, pregnant employees who have not yet gone on maternity leave by the time a redundancy situation arises are not entitled to this special protection.

Notice of dismissal tweak

Employees who are dismissed while pregnant or during statutory maternity leave must be given a written statement giving "particulars of the reasons" of dismissal without having to request it, regardless of their length of service (section 92(4) and (4A) ERA 1996). A tribunal must award two weeks' statutory pay where it finds a failure to provide the correct written notice.

The CJEU confirmed the existing positon that there is no need to cite any 'exceptional grounds' in the dismissal notice, over and above those on which the collective redundancy is based. However, the dismissal notice must also include the objective criteria chosen to identify the workers to be made redundant. While it has always been best practice for the "particulars of the reasons" to include not only the circumstances giving rise to redundancy situation but also the application of the selection criteria, employers should note this is now required to be included for pregnant employees and those on maternity leave.

5. The numbers to know - April changes to compensation limits & statutory pay rates

Tribunal awards

From 6 April 2018, tribunal award limits increase including:

  • a week's pay - £508 (currently £489).
  • maximum basic award/statutory redundancy payment - £15,240 (currently £14,670).
  • maximum compensatory award - The lower of £83,682 (currently £80,541) or 52 weeks' pay

Note: The new rates apply where the "appropriate date" occurs on or after 6 April (e.g. for unfair dismissal the effective date of termination) and not the date of the corresponding tribunal hearing.

Statutory payments rates

From April:

  • the standard rates of statutory maternity, paternity, adoption and shared parental leave pay increase to £145.18 per week (currently £140.98) from 1 April. Maternity Allowance will increase by the same rate but not until 9 April; and
  • the standard rate of statutory sick pay increases to £92.05 per week (currently £89.35) from 6 April.