The EAT has clarified that voluntary overtime, standby allowances and call-out payments count towards holiday pay if sufficiently regular. This decision follows the now well-established direction of travel for holiday pay cases, highlighting that voluntary elements of work are in principle to be treated no differently, for holiday pay purposes, than compulsory non-guaranteed overtime dealt with in Bear Scotland. However, some uncertainty does remain. The question of whether a payment is “normal” is a question of fact and degree for a tribunal, which means employers will need to take a view on how they treat borderline cases.

Discrimination. The EAT has held that claimants do not bear the initial burden of proof in discrimination cases. It is for the tribunal to consider all the evidence, not just from the claimant but from all sources, to decide whether there are facts from which it can conclude that discrimination has occurred. The impact of the decision will be far-reaching as it changes the long-established burden of proof principles set out in Barton v Investecand Igen v Wong.

The EAT has also held that no indirect discrimination occurred when a prison disciplined a prison chapel volunteer for quoting Bible passages that caused offence to some people in the congregation. Following an investigation, the quotes in context, were concluded to be homophobic. The claimant’s argument that the employment tribunal had erred in requiring him to show group disadvantage was rejected. Group disadvantage  is a clear requirement of indirect religion or belief discrimination under section 19 of the Equality Act 2010 (EqA 2010), notwithstanding the potential incompatibility with Article 9 of the European Convention on Human Rights.

 

Employee data and monitoring. The government has published a statement of intent on the planned Data Protection Bill. The Bill will repeal the Data Protection Act 1998 and incorporate the EU General Data Protection Regulation into UK Law. The Bill is planned to be published after 5 September 2017 when Parliament returns after the Summer recess.

Employment status. In another decision on employment status in the “gig economy” an employment tribunal has held that a cycle courier working for Addison Lee was a worker and not a genuinely self-employed independent contractor.