Mon 5 June, 2017
Q: Can an appellant to the Employment Appeal Tribunal (EAT) rely on vague medical evidence to get an extension of time for a late appeal?
A: No, as held by the EAT in J v K & Anor (1).
The appellant J appealed to the EAT (2) against the strike-out of his discrimination claim. He sent in his Notice of Appeal before the 4pm deadline on the final day, but because the file was too big it was rejected by the EAT's server. He then sent in his Notice of Appeal in several smaller files and this was completed by 5pm. The appeal was therefore deemed lodged late, on the next working day. J argued that time should be extended because of his depression but he did not provide any specific medical evidence, and that his appeal could be let in under rule 39 (1), which provides that 'proceedings' are not invalidated by a breach of the EAT's Rules (3) unless the EAT so directs.
J's medical evidence this included some extracts from the US Department of Veterans Affairs website but it was not specific to him. Forensic medical evidence about a failure to meet the EAT's strict time limits could not be ''off the peg" but must be "bespoke" and "fit the individual case" to explain why an Appellant could not have lodged an appeal in time. Rule 39 (1) only applied once proceeding' had been lodged correctly under Rule 37, so it could not help the Claimant.
Holiday pay: ambulance workers win overtime claim
At a recent employment tribunal (4) decision, it was held that ambulance workers’ compulsory overtime in respect of “shift overruns” should be included in the calculation of their holiday pay, this is the latest decision to apply the abundant case law on how employers should calculate pay during annual leave.
In the case Flowers and others v East of England Ambulance Trust, the employment tribunal held that ambulance workers’ non-guaranteed overtime in respect of “shift overruns” should be included in the calculation of their holiday pay, but that on the facts of this case purely voluntary overtime does not have to be included.
Holiday pay and overtime: employment tribunal’s view
“The respondent accepts that the ‘shift overrun’ non-guaranteed overtime should be taken into account in determining statutory holiday pay under the WTR [Working Time Regulations (5)] or WTD [Working Time Directive (6)] and, if necessary, it is possible to construe the WTR to mean that such payments should be taken into account…
“There has therefore been unauthorised deductions from the wages (7) of those claimants who, in the three months prior to any period of leave, undertook such non-guaranteed overtime.”
Workers at East of England Ambulance Trust brought unlawful deductions from wages claims in relation to how the trust calculates their holiday pay.
The ambulance workers claimed in their case that their paid annual leave should have included the following:
overtime that is required to be worked when a shift overruns; and
voluntary overtime that the workers can choose to do when it is offered.
The employment tribunal Judge concluded that the trust has to include non-guaranteed overtime for “shift overruns” in the workers’ holiday pay.
The tribunal accepted that it is not open to any of the claimants to leave at the end of the shift if they are in the middle of an emergency call.
As an essential requirement of the ambulance workers’ role, overtime pay for shift overruns must be included in holiday pay.
The employment tribunal therefore upheld the ambulance workers claims for unauthorised deductions from wages of all workers who, in the three months prior to any period of annual leave, were required to do this type of overtime.
The employment tribunal Judge, however, recognised that there is no obligation for the ambulance workers to perform the voluntary overtime.
The tribunal accepted from the case law that it was open to it to find that purely voluntary overtime to be included in holiday pay (8). However, in this case there was no evidence before this tribunal of a pattern in voluntary overtime: it varies depending on the nature of the role, the type of work undertaken and the needs of the organisation.
While the workers can be asked by the trust whether or not they are available to do this type of overtime, there is no obligation on staff to accept this overtime.
- J v K & Anor (Practice and Procedure: Time for appealing)  UKEAT 0661_16_1005 [Internet]. 2017 [cited 2017 Jun 5]. Available from: http://www.bailii.org/uk/cases/UKEAT/2017/0661_16_1005.html
- Employment Appeal Tribunal - GOV.UK [Internet]. [cited 2017 Jun 5]. Available from: https://www.gov.uk/courts-tribunals/employment-appeal-tribunal
- Employment Appeal Tribunal rules - GOV.UK [Internet]. [cited 2017 Jun 5]. Available from: https://www.gov.uk/government/publications/employment-appeal-tribunal-rules
- Employment Tribunal - GOV.UK [Internet]. [cited 2017 Jun 5]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal
- The Working Time Regulations 1998 [Internet]. [cited 2017 Jun 5]. Available from: http://www.legislation.gov.uk/uksi/1998/1833/contents/made
- Working Conditions - Employment, Social Affairs & Inclusion - European Commission [Internet]. [cited 2017 Jun 5]. Available from: http://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=205
- What is an Unlawful Deductions from wages? [Internet]. Castle Associates Ltd. 2017 [cited 2017 Jun 5]. Available from: https://castleassociates.org.uk/?q=ask-the-expert/watch/what-unlawful-de...
- Holidays and holiday pay [Internet]. Castle Associates Ltd. 2016 [cited 2017 Jun 5]. Available from: https://castleassociates.org.uk/?q=support-centre/holidays-and-holiday-pay