Childcare Counsel - disability discrimination, voluntary overtime

Q We would like to appoint a receptionist who has non-significant hearing loss. If her hearing loss progresses, this could be costly. Could she bring a claim against the nursery if it refuses to recruit her?

A Potentially, yes. The Court of Appeal has confirmed ‘disability’ extends both to an individual perceived to be disabled and to those perceived to have a progressive condition likely to result in future disability. Refusing employment because of the latter falls within disability discrimination.

Q Can we exclude voluntary overtime from holiday pay?

A Case law has extensively addressed the basis of holiday pay calculations under the Working Time Regulations and the Working Time Directive, leading to several overarching principles being established, including the need to ensure workers are properly compensated during periods of leave and not deterred from taking holiday. Despite this, an anomaly which has remained unresolved conclusively is the extent to which voluntary overtime might need to be included in calculations of holiday pay.

The UK courts recently concluded that voluntary overtime is likely to form part of ‘normal pay’ and to be relevant to the calculation of holiday pay in many cases unless it is exceptional. That was despite the absence of a contractual obligation to work voluntary overtime.

The most recent judgment is unlikely to be the final word on this subject. Nurseries would therefore be well advised to take specialist advice before making changes to the way holiday pay is calculated. However, if the most recent decision is finally approved in due course, the financial liability many nurseries and other employers face in unpaid holiday pay could be sizeable. In that regard it is particularly worth noting that the issue of backdated payments is itself still hotly contested in the courts.

• Send your questions to hannah.crown@markallengroup.com