BEERG Newsletter - UK: Supreme Court rules against pro-rating holiday pay

Anna Sella and Lee Nair of Lewis Silkin (here) write: On 20 July 2022, the UK Supreme Court ruled that the paid holiday entitlement of part-year workers should not be pro-rated for the weeks they do not usually work. This means that the 12.07% method for calculating the holiday pay hours of casual workers on permanent contracts is no longer a valid approach.

Employers with people under contract for the whole year but who work for short of a whole year, or who currently use the 12.07% method for casual workers on permanent contracts, should review their contracts and policies in light of this decision. They may also now face significant claims for underpaid holidays. You can read Anna’s and Lee’s article in full (here).

In other U.K. legal news, the union UNISON has filed a legal challenge to the government’s decision to allow employers to use agency staff to fill-in for workers on strike. The unions says that the government’s reliance on a seven-year-old consultation and flawed evidence to justify changing the law is unlawful.

UNISON says it also intends to show that the government is in breach of Article 11 of the European Convention on Human Rights, which protects the right to strike, and international labour standards. Its general secretary Christina McAnea said: “The government is prepared do anything to stop strikes, except encourage dialogue and sensible industrial relations.

“Sending agency staff into disputes to break strikes will only fan the flames and make it harder for employers and unions to reach agreement…

…Strikes are only ever a last resort, and often the only avenue left to employees in the face of hostile employers. Changing the law to make it harder for workers to win disputes is both reckless and unlawful. If ministers won’t back down, we’ll take the government to court to prove it.”

The Financial Times reports that UK Foreign Secretary, Liz Truss, widely seen as the favourite to succeed Boris Johnson as Tory leader and the next prime minister, has said that if she gets to No 10 she will enact legislation in the first 30 days to make it more difficult for you to strike. Currently, unions must secure a 50% turnout of a company’s workers for a strike to be legal. In addition, employees in “important public services” need to obtain an active vote from over 40 per cent of the entire workforce. Truss pledged to change the law to require 50% of the entire workforce to vote “yes” in order for a strike to go ahead, and that this would apply to all places of work not just crucial public services.

The foreign secretary said: “We need tough and decisive action to limit trade unions’ ability to paralyse our economy. I will do everything in my power to make sure that militant action from trade unions can no longer cripple the vital services that hard-working people rely on.”