Gordons Employment Update - 1 April 2019

Monday 1st April 2019

Holiday pay

The Government has launched an advertising campaign clarifying the rights of workers and employees to holiday pay following a poll which found many did not understand their rights. The poll found that £1.8 million people are not receiving the holiday pay which they are entitled to, with shift workers, those working on zero-hour contracts and agency workers most likely to be missing out.

Most workers are entitled to 5.6 weeks’ paid holiday a year. How that is calculated will depend on the workers working pattern. Those working full or part-time on fixed hours will be entitled to the amount they are normally paid for a week’s work. A full or part time shift worker with fixed hours should be paid the average number of weekly fixed hours worked in previous 12 weeks, at their average hourly rate. Those workers with no fixed hours, including zero-hours contract workers, should be paid a their average pay from the previous 12 weeks, only counting weeks in which they were paid.


Employers should ensure that they are calculating rates of holiday pay correctly. Common pitfalls include miscalculating the holiday pay of shift workers by failing to include in the calculation any voluntary overtime which extends over a sufficient period of time on a regular recurring basis so as to be considered ‘normal’. Failure to do so could result in claims for breach of contact being brought by workers.

Unfavourable treatment and mistaken belief

In iForce Ltd v Wood the EAT considered if a warning issued to the Claimant amounted to unfavourable treatment arising in consequence of disability.


Ms Wood was a packer working for the Respondent, a logistics company. The company were aware of her disability, osteoarthritis, which was exacerbated by exposure to damp and cold. The company changed its working practices from each packer working at a fixed bench to rotating around various benches, some of which were situated by the loading doors. Ms Wood refused to do so as she believed working closer to the loading foors would expose her to colder, damper conditions which would exacerbate her osteoarthritis. The company investigated the temperature and humidity of the work benches and found no material difference in each. Ms Wood was eventually issued with a written warning.

Ms Wood brought a claim to the Employment Tribunal stating that the warning she received amounted to discrimination because of something arising in consequence of her disability. The first instance Tribunal agreed and found in her favour.

Decision and comment

The EAT however allowed the company’s appeal. It held that unfavourable treatment arose not from Ms Wood’s disability but from her mistaken beleif that the working benches closer to the loading door were colder and more damp. The company had not therefore treated Ms Wood unfavourably because of her disability.

The EAT affirmed that the test as to whether unfavourable treatment had arisen due to Claimant disability is an objective one requiring a connection between the treatment and disability.

Adverse treatment amounting to sexual orientation discrimination and constructive dismissal

In Tywyn Primary School v Aplin the EAT held that the treatment of a Head Teacher by his school was constructive dismissal and sexual orientation discrimination.


The Equality Act 2010 provides that sexual orientation is a protected characteristic and makes it unlawful to discriminate against someone due to their sexual orientation.

In order to establish that an employee has been constructively dismissed three key elements must be proved; i) an actual or anticipatory fundamental or repudiatory breach of contract ii) the employee must resign in response to the breach iii) the employee must not delay for too long in resigning.


Mr Aplin was an openly gay 42 year old primary school Head Teacher. He met two 17 year old males on Grindr and the three of them had sex. The Local Authority set up a Professional Abuse Strategy Meeting which concluded that no criminal offence had been committed and no child protection issue arose. Despite this the school brought disciplinary proceedings. After being dismissed by the school and appealing the decision Mr Aplin resigned on the basis that a series of procedural errors in dealing with the appeal amounted to a breach of implied term of trust and confidence.

Mr Aplin brought claims to the Employment Tribunal claiming dismissal and sexual orientation discrimination. In the first instance the Employment Tribunal held that Mr Aplin had affirmed the contract by bringing his appeal but that continuing procedural errors entitled him to resign and that his claim of unfair constructive dismissal therefore succeeded.

Regarding the discrimination claim, it held that the claim was proven in relation to the investigating officer, but not in relation to the other parties involved, including the Local Authority lawyer and the Governors of the School.

The school appealed against the decision, Mr Aplin also cross-appealed against the finding that the other parties involved had not been discriminatory.

Decision and comment 

The EAT dismissed the school’s appeal, upholding the ET’s decision that Mr Aplin had been constructively dismissed and discriminated against. The EAT also ordered that a decision as to whether the school Governors had discriminated against Mr Aplin be remitted back to the first instance tribunal for decision.

The case reinforces the need for investigating officers to be factual and objective during their investigations and for proper procedure to be followed during the disciplinary proceedings.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team.