Welcome to the June edition of Up to Date. Read on for a roundup of the latest news and developments in relation to employment and immigration.

No break in a series of deductions after 3 month gap could increase cost of holiday pay claims 

In a decision likely to affect the outcome of future UK holiday pay cases, the Court of Appeal in Northern Ireland has ruled that a "series of deductions" in an unlawful deductions from wages claim will not necessarily be broken by gaps of more than three months between underpayments.  Whilst decisions in Northern Ireland are not binding in the English courts, they are persuasive, so this decision will be relevant authority in any future appeals regarding holiday back pay (Chief Constable of the Police Service of Northern Ireland and others v Agnew, 2019)

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Court of Appeal rules that voluntary overtime payments should be reflected in holiday pay

The Court of Appeal has upheld an EAT decision that the Working Time Directive gives rise to an entitlement to have voluntary overtime payments reflected in holiday pay provided that such payments represent normal pay.  In addition, the claimants in this case had a contractual entitlement to have voluntary overtime payments reflected in their holiday pay (East of England Ambulance Service NHS Trust v Flowers and ors).

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Court of Appeal rules on lawfulness of offers designed to bypass collective bargaining

The Court of Appeal has ruled on the meaning of the "prohibited result" for the purposes of section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992.  A direct offer made by an employer in connection with pay and changes to terms of employment was not unlawful because it was intended to bypass collective bargaining on a temporary basis only.  An unlawful "prohibited result" would only occur where the purpose of the offer was to permanently stop collective bargaining in relation to those terms (Kostal UK Ltd v Dunkley and ors).

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Court of Appeal confirms that making assumptions about a medical condition amounted to direct discrimination by perception

The Court of Appeal has held that an employer's decision to refuse a job transfer request amounted to direct discrimination because it was based on a mistaken perception that the employee's mild hearing loss was a progressive condition under the Equality Act 2010 (Chief Constable of Norfolk and Lisa Coffey [2019] EWCA)

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