Employment Review: June 2017

This month we consider three EAT cases which touch upon a number of interesting employment law areas, including issues to consider when using tests or other assessment tools during the recruitment process, the '3-month gap' rule determined in the Bear Scotland holiday pay case, and the extent to which workers are entitled to the National Living / Minimum Wage (NMW) during sleep-in shifts.We also report on a new guidance document expected to be issued by the government on workplace dress codes this summer

Use of psychometric tests during recruitment comes with a 'health warning'Whilst the GLS had a legitimate aim in requiring candidates to sit SJT's (i.e. to assess the competency of candidates in making effective decisions), the means of achieving that aim was not proportionate as it was possible to achieve that aim using a different test format.Only one of the small number of applicants with Asperger's syndrome had passed the SJT.The university that Ms Brookes had previously attended had made adjustments to her course and accepted that multiple choice questions should be replaced with questions requiring a short written answer.EAT confirms that a gap of more than 3 months between underpayments of holiday pay breaks the chain to claim in respect of earlier underpaymentshere. One of the principles that came out of that judgment was that a gap of more than 3 months between underpayments of holiday pay breaks the chain to claim in respect of earlier underpayments (i.e. a series of deductions). Having considered the holiday pay issue, the case was remitted back to the Employment Tribunal (ET) to be decided on its facts. The ET found that, based on the interpretation of the legal principles set out in the previous judgment, some of the claims were time-barred and dismissed them. The Claimants appealed the decision to dismiss some of their claims, and argued that it was not a binding rule that a gap of more than 3 months between underpayments of holiday pay breaks the chain to claim in respect of earlier underpayments.The EAT, dismissing the appeal, has laid any such arguments to rest and has confirmed that the interpretation of the legal principles concerning the '3-month gap' formed part of the 'ratio decidendi' of the judgment (i.e. part of the essential elements of a judgment which create binding precedent) and was a 'binding' rule on first instance employment tribunals which the EAT found no reasons to depart from.Commentary - it should be remembered that this ruling in relation to the interpretation of 'a series of deductions' applies in relation to any underpayment of wages, not just holiday pay - i.e. such as the NMW. So a 3-month gap will break the chain or 'series of deductions' unless there is a legal exception which applies (such as it 'not being reasonably practicable' to bring such a claim in time).

Sleep-in shifts - are workers entitled to the National Living / Minimum Wage (NMW) for the full duration of a sleep-in shift or only when they are awake?A recent Employment Appeal Tribunal (EAT) decision will be of particular interest to care sector employers where the use of sleep-in shifts is fairly common.Three cases were consolidated in this appeal to consider the question of whether the Claimants, who were effectively required to be 'on call' or otherwise available during the night, were entitled to the NMW for the whole of their shifts (i.e. considered to be working during the whole period by simply being present) or only when awake and carrying out relevant duties.The EAT judge, Simler DBE, confirmed that a "multifactorial evaluation" needed to be applied by considering a number of factors, and listed a number of potentially relevant factors at paragraph 44 of the judgment

• the employer's purpose in employing the worker - for example, if the need to have a sleep-in worker is a regulatory requirement, this may be more likely to indicate that a worker is working by simply being present;the extent to which the worker's activities are restricted by the requirement to be present and at the employer's disposal - for example, if the worker might be disciplined if they do not remain present, this may be more likely to indicate that a worker is working by simply being present;the degree of responsibility undertaken by the worker - for example, having a heavier personal responsibility may be more likely to indicate that a worker is working by simply being present;the immediacy of the requirement to provide services if something untoward happens or an emergency arises - for example, if the worker is the decision-maker as to whether any action is required to be taken during the night (rather than being notified of the action being required), this may be more likely to indicate that a worker is working by simply being present.there was a 'continuing obligation' on her throughout the night where she had sole responsibility for keeping a listening ear and using her professional judgement;she was required to be there and to deal with such situations as might require her attention or intervention;she had to be there not only for the proper performance of her duties but also to enable her employer to comply with its legal obligations to provide appropriate care;she had responsibilities to undertake even though the frequency of activity was low and she was entitled to sleep;the onus was 'constantly upon her' to use her professional judgement to decide if and when to intervene.New guidance on workplace dress codes expected this summer