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Employment Law & HR Update - August 2018

Employment Law & HR Update - August 2018

Sophie Allinson discusses the outcome of three notable employment law cases in her August 2018 update.

Can an employee’s discrimination claim succeed on grounds of philosophical belief if the employee is the only person to hold that belief?

The Employment Appeal Tribunal (EAT) decided no, in Gray v Mulberry.

The claimant was employed by Mulberry. Her employment contract contained a provision assigning ownership of copyright in her work to the employer and this was a standard clause used by the employer. The claimant refused to sign the contract however, due to fears that a novel and screenplay she was producing would be assigned to the employer, despite this being excluded under the contract of employment.

The claimant was dismissed and claimed that she had been indirectly discriminated against due to her belief in the sanctity of copyright law, asserting that this was a protected characteristic under the Equality Act 2010. She claimed that the clause in the contract, while applying to everyone, was more likely to be detrimental to people sharing her belief.   

The EAT decided that the claimant’s belief lacked sufficient weight to qualify as a protected characteristic. Furthermore, even if the claimant’s belief had been sufficient, she was the only person to hold that belief and therefore there could be no ‘disadvantaged group’ to which indirect discrimination could apply.


Is an employee who is required to sleep at a client’s home entitled to minimum wage whilst asleep?

No, decided the Court of Appeal in MenCap v Thomlinson-Blake.

Lord Justice Underhill decided that workers sleeping under this arrangement, for example a carer sleeping at a client’s home, are not entitled to be paid the minimum wage for the time spent asleep. A worker will only be entitled to the minimum wage for the period of time in which they are awake, and are expected to be awake, in order to perform a specific activity, for example to deliver medication.


Should voluntary overtime be considered when calculating holiday pay?

In certain circumstances, yes, decided the Employment Appeal Tribunal (EAT) in Flowers and others v East of England Ambulance Trust.

The employment contract for members of an ambulance crew contained clauses in respect of mandatory overtime and voluntary overtime, both of which were irregular and not guaranteed.

The claimants made a claim in respect of unpaid holiday pay, arguing that their voluntary overtime should be included when calculating ‘normal’ remuneration for the purposes of working out holiday pay. The EAT decided that where voluntary overtime was paid over a sufficient period of time, then it counts towards the employees ‘normal’ remuneration for the purposes of working out how much holiday pay they should be paid.

Whether voluntary overtime is paid over a sufficient period of time is a fact-finding exercise and, ultimately, a matter for the Employment Tribunal to determine.

About the author

Sophie Allinson profile photo

Sophie Allinson

Sophie is a Solicitor in the firm's HR & Employment team.

Published: Tuesday 7th August 2018
Categorised: Employment, HR

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