UK: Employment Law Update – September 2019

Last Updated: 13 September 2019
Article by Alistair McArthur

We are pleased to provide you with the Herrington Carmichael LLP employment law update for September 2019.

This is a key note summary of some of the main developments in employment law in the last month.

1. Holiday pay cannot be pro-rated for 'part year workers'

In the most recent case about the way holiday pay is calculated, of Brazel v The Harpur Trust, the Court of Appeal has ruled that holiday pay for permanent workers who only work part of the year cannot be pro-rated.

The Claimant was a music teacher, working only school term time. She was required to take her holiday outside of the school term and her employer paid her accrued holiday entitlement three times a year, at the end of each term. The Claimant's holiday entitlement was calculated by reference to 12.07% of the hours she worked. Whilst this is not a method of calculation prescribed by the Working Time Regulations 1998 (WTR), it is one regularly used by employers to calculate holiday entitlement of casual workers. The Claimant argued that her holiday pay was incorrectly calculated and should be calculated using the average of the 12-week period immediately preceding the holiday. This is as set out in the WTR.

The Employment Tribunal ruled that, in circumstances where an employee is on a permanent contract but only works part of the year, they are still entitled to 5.6 weeks of holiday, and this should be calculated using the average of the 12-week period immediately before the holiday. Using this calculation (rather than the 12.07% multiplier) gave the Claimant a greater amount of holiday entitlement and, in turn, pay.

The Respondent appealed on the grounds that they did not consider it to be equitable as such an approach would result in the Claimant receiving a higher proportion of her annual salary as holiday than that of a full-time worker. The Court of Appeal rejected this appeal.

This decision confirms the importance of complying with the WTR and getting your calculations right, rather than just working on the basis of assumptions. All employees who work irregular hours should have their holiday pay calculated based on the 12 week reference period, even where this causes a disparity as to the amount of holiday different employees will receive.

2. Illegal employment contracts

In case of Chikale v Okedina, The Employment Appeals Tribunal (EAT) held that an illegal contract is not automatically unenforceable.

Ms Chikale had been brought to the UK, on a domestic worker visa, by Ms Okedina. Ms Chikale was required to work seven days a week for two years, for which she was paid a total of only £3,300. The Claimant's visa had expired but she continued to work in breach of immigration rules, having been falsely advised by Ms Okedina that the relevant steps were being taken to extend her visa.

Ms Chikale asked for more money and Ms Okedina summarily dismissed her. She then brought claims against the Respondent. Ms Okedina tried to rely on the defence of illegality, arguing that the contract with Ms Chikale was unenforceable from the point at which the visa had expired. The EAT, however, concluded that Ms Chikale was unaware of the fact that she was illegally working and rejected the defence of illegality. MS Okedina appealed.

The Court of Appeal rejected the appeal. Firstly, it concluded that the legislation was not aimed at employees working illegally, but imposed penalties on employers who were employing such individuals. As Ms Chikale had no knowledge that she was working illegally, she should not be denied remedies under this defence. Secondly, it concluded that Ms Okedina could not rely on the defence of common law illegality, as Ms Chikale had not knowingly participated in the illegal performance of her contract. Therefore there was no reason to deny her a remedy.

It is important to note that the facts of this case are exceptional, as in most cases involving illegal workers, the individuals are likely to have knowledge of their visa status. This case does however demonstrate the Courts willingness to take a pragmatic approach to protect vulnerable employees.

3. Protected disclosures – reasonable belief in public interest

In the case of Okwu v Rise Community Action, the EAT found that, in relation to whether a protected disclosure was in the public interest or not, it only requred the employee to have reasonable belief that it was.

The Claimant was employed by, Rise, a charity providing support for individuals affected by domestic violence. After issues were raised about the capability of the Claimant, her probation period was extended by three months. The Claimant wrote to the Respondent raising concerns that Rise were breaching Data Protection legislation. The Claimant's employment was later terminated and she brought an unfair dismissal claim against the Respondent on the basis that she had been dismissed for whistleblowing. The Employment Tribunal found that matters she raised concerned only her own position and were not in the public interest.

The Claimant appealed the decision and the EAT found that the Tribunal had failed to consider whether she had reasonable belief that her disclosure was in the public interest. The EAT said that it was hard to see how it could not have been, given the sensitive nature of the information involved. The appeal was allowed on the grounds of this and remitted to the Tribunal for reconsideration.

This case highlights the importance for employers to consider carefully whether a complaint made by an employee could amount to a protected disclosure, taking into account the mindset of the employee making the disclosure.

4. Pleadings for constructive unfair dismissal

In Upton-Hansen Architects v Gyftaki, the EAT held that if an individual is found to have been constructive dismissed, an employer needs to prove a potentially fair reason for the dismissal to successfully defend the claim. The employer lost the claim at the Tribunal stage and appealed to the EAT on, amongst other points, the Tribunal had not considered whether there was a fair reason to dismiss the Claimant. The EAT, however, dismissed this appeal on the grounds that the employer had not pleaded any such reason. The employer had not asserted that if the dismissal was found to have happened, such dismissal was fair, nor had they attempted to assert what the potentially fair reason would be in that case. The EAT held that a generic denial of any matter does not serve to positively identify what, if anything, the employer's case will be on that aspect, in the event that constructive dismissal is found, thus the appeal was dismissed on this ground.

This case underlines the importance of properly pleading cases and defences. The fact that the burden of proving a potentially fair reason for dismissal is on the employer and confirms that in cases of constructive unfair dismissal, a potentially fair reason for dismissal should be pleaded in the alternative.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions