Credit Management September 2023

HR MATTERS
Take it, don’t leave it
A case of avoiding unwanted conduct and
another of a claim for a holiday pay shortfall.
IN a first instance decision,
Fahmy v Arts Council England,
the Employment Tribunal has
upheld a claim for harassment
relating to an employee's
protected gender critical belief.
In the case, the claimant attended
a virtual drop-in session for all staff.
The drop-in session had been arranged
following the suspension of a grant
due to the alleged transphobia of the
recipient charity. During the session,
the claimant challenged the view that
the charity had been anti-trans, and
queried how gender critical views were
protected.
Following the session, the deputy
chief executive sent an email stating that
it was important to treat all colleagues
with respect and dignity, indicating his
personal solidarity with the council's
trans and non-binary staff. In addition,
another member of staff sent an 'all
staff' email about a grievance raised by
the LGBTQIA+ working group, referring
to homophobic and anti-trans views
expressed in the drop-in session. The
email contained a link to a document
referred to an 'allies support sheet'
and other comments responded to the
email referring to gender critical beliefs
as bigoted and anti-trans, amongst
THE Employment Appeal Tribunal
(EAT) has confirmed that an agreement
governing pay in lieu of accrued, but
untaken holiday, cannot result in lower
pay than would be paid under the Working
Time Regulations.
In the case of Conner v Chief Constable
of the South Yorkshire Police, the claimant
was dismissed after a period of ill health.
On the termination of his employment,
he was owed pay in lieu of accrued
but untaken holiday. His contract of
employment contained a clause providing
that this would be calculated at the
accrual rate of 1/365.
As a salaried employee, had the
claimant taken this holiday during his
employment, he would have received the
same amount of pay for time spent on
holiday as he would have received had he
been at work. However, when the 1/365
contractual accrual rate was used, the
AUTHOR – Gareth Edwards
EAT Rules on untaken holiday
value of this accrued holiday was less than
his salaried rate of pay.
The claimant brought a holiday pay
claim to recover the shortfall. The tribunal
rejected his claim, holding that the 1/365
contractual accrual rate was a 'relevant
agreement' for the purposes of the Working
Time Regulations (WTR). The WTR deals
with pay in lieu of accrued holiday where
the claimant leaves part-way through the
leave year. It provides that the amount
due in these circumstances will either
be provided under a 'relevant agreement'
(which can include a contractual clause),
or will otherwise be calculated according
to a statutory formula.
The claimant appealed to the
Employment Appeal Tribunal (EAT).
The EAT upheld the appeal. For a
worker with normal working hours and
pay that does not vary, the usual approach
will be to divide their annual salary into
other comments. The claimant's line
manager and another colleague raised
concerns about the email and the
document that had been circulated, and
the link was removed a day later.
The claimant made a complaint under
the dignity at work policy which resulted
in disciplinary proceedings taking place
against the employees involved in the
email. The claimant then brought
tribunal claims including a claim for
harassment related to religion or belief.
The tribunal found that whilst it
was inappropriate for the deputy
chief executive to express his personal
views, his actions did not amount to
harassment. They did, however, prompt
the subsequent email that was sent.
The actions of the colleague who sent
the email were held to be harassment,
being unwanted conduct which had
the purpose and effect of violating
the claimant's dignity and creating
an intimidating, hostile, degrading,
humiliating or offensive environment.
This is a first instance decision so
it is not binding on other tribunals.
However, it is a useful demonstration
of the practical challenges employers
may encounter in protecting
competing views or beliefs within a staff
body.
52 in order to calculate the amount of a
week's pay. This will be the amount paid
during both working time and holiday
time. A relevant agreement can alter the
approach to calculating accrued holiday
pay. However, a relevant agreement must
provide for a calculation method that is in
keeping with the rights provided for in the
WTR. It cannot provide for a calculation
that makes the employee worse off than
had they worked instead of taking, or
being paid for, the leave.
This case reinforces the key underlying
aim of our holiday pay law framework –
workers must not be disincentivised from
taking their leave. If they are paid less
than their normal remuneration during a
period of leave, they are less likely to take
holiday.
Gareth Edwards is a partner in
the employment team at VWV.
Brave | Curious | Resilient / www.cicm.com / September 2023 / PAGE 54