Case Law updates

Holiday pay: The Supreme Court has held that when looking at holiday pay claims involving a series of deductions, the ‘series’ is not always broken by a gap of three months or more, nor necessarily broken by a correct payment being made. Instead, whether there is a series of deductions must be considered on the facts and in all the circumstances, including the similarities and differences, frequency, size and impact, and how the payments came to be made. Although a decision based on the Northern Irish equivalent of the Working Time Regulations, the decision will nonetheless be relevant in Great Britain, although regulations here currently limit back payments to two years. (Chief Constable of Police Service of Northern Ireland v. Agnew)

Philosophical beliefs: The employment tribunal has found a claimant’s beliefs around race and racial equality, particularly his opposition to critical race theory, to be protected under the Equality Act 2010 but that his beliefs around sex and feminism were not. Although not a binding decision, it is a helpful reminder of the five-stage test for determining protection, namely that the belief (i) is genuinely held; (ii) is not merely an opinion or viewpoint; (iii) concerns a weighty and substantial aspect of human life and behaviour; (iv) is sufficiently cogent, serious and cohesive; and (v) is worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others. (Corby v. Acas)

Restraint of trade: The High Court has rejected an argument that a clawback clause requiring repayment of a bonus in certain circumstances was a restraint of trade or a penalty clause. Whilst the clawback clause, which required repayment if the employee left employment or was under notice within three months of it being paid, was a disincentive to resign, it did not prevent the employee working elsewhere. (Steel v. Spencer)

Vicarious liability: The Court of Appeal (CA) has been considering the liability of a school in circumstances where a work experience student groomed and sexually assaulted one of the students. Upholding the decision that the school was not liable, the CA was satisfied that there was a relationship ‘akin to employment’ but that there was not a sufficiently close relationship between that relationship and the wrongdoing. The close connection test will usually turn on the specific facts, but is often tricky to establish where the act of wrongdoing is not associated or extrinsically linked with something the individual is authorised to do. (MXX v. A Secondary School)

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