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The impact of the Covid-19 pandemic continues to dominate our lives. Every day there are news reports on the state of the economy.

By Natasha Smith, Senior Associate

The impact of the Covid-19 pandemic continues to dominate our lives. Every day there are news reports on the state of the economy with Covid-19 affecting businesses up and down the country in a multitude of ways, meaning employers having to closely monitor and adapt to the ever-changing situation.

A number of important employment law questions have arisen out of issues such as the testing regime; the vaccination rollout; the furlough scheme; mass redundancies; business take overs; working from home practices; the health and safety of workforces and the increased impact on staff mental health to name but a few.

However, decisions on these issues are not likely to given for some time (due to the natural period of time it takes for cases to develop, coupled with the backlog of Employment Tribunal cases), however when they do, we expect them to be significant in number and variety.

In the meantime, there are several important employment law developments employers can expect in 2021, as the outcome of various tribunal cases which were already in the pipeline before the pandemic, will be decided. 

Here is a review of four major cases due to be decided by the Supreme Court this year and their significance for employers in various sectors.

1. National Minimum Wage for ‘sleep-in’ workers (Royal Mencap Society v Tomlinson-Blake) 
As the law currently stands, ‘sleep-in’ workers (such as those working in the care sector) are only ‘available for work’ and so not entitled to national minimum wage, except for the time they are up and working.  
However, the Supreme Court’s decision may change this when it answers the vital question of whether ‘sleep-in’ workers also need to be paid national minimum wage for the time they spend asleep. This case could therefore have major consequences for the care industry on how much they pay their workers.

2. Equal Pay (Asda Stores Ltd v Brierley and others)
This case is one of the largest equal pay claims in the private sector. The Supreme Court will decide whether the work undertaken by Asda supermarket workers (who are predominately female) is comparable to the work undertaken by workers in the Asda depots (who are predominantly male).

3. Including voluntary overtime in holiday pay (Flowers and others v East of England Ambulance Trust)
In June 2021, the Supreme Court will consider whether voluntary overtime must be included in the calculation of holiday pay under the Working Time Directive. The Court of Appeal had previously decided that voluntary overtime should be included in the calculation of holiday pay where overtime was paid ‘regularly’. This case will be of interest to employers who give workers the opportunity of completing overtime.

4. Calculation of holiday pay for part-year workers (Harpur Trust v Brazel)
In November 2021, the Supreme Court will decide whether the holiday entitlement of part-year workers (such as those working in schools) on permanent contracts should be pro-rated to reflect the fact that they do not work the full year. As it currently stands, holiday pay should be based on the worker’s earnings over the 52-week period before the holiday was taken and actually means that part-year workers are paid a proportionately higher rate of pay for their holiday than full-year workers.

If you would like to discuss any of the above issues or any other employment matter, please do not hesitate to contact Joseph Oates on email: jmo@cooperburnett.com or Natasha Smith on email: nes@cooperburnett.com or tel: 01892 515022.

This blog is not intended as legal advice that can be relied upon and CooperBurnett does not accept any responsibility for the accuracy of its contents.

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March 15, 2021
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