Impact assessment

Equality considerations under the Equality Act 2010, including fulfilment of the PSED for the Collective Agreed Framework in relation to annual leave payments: additional guidance

Published 10 June 2021

Applies to England

Introduction

1. The case of Flowers v East of England Ambulance Service NHS Trust relates to the treatment of overtime payments and in particular payments for voluntary overtime in the calculation of holiday pay and the interpretation of the Working Time Directive and Section 13.9 of the NHS Terms and Conditions of Service Handbook (‘the Handbook’) which describes the calculation of pay during annual leave.

2. The Court of Appeal’s judgment in Flowers ruled that regular voluntary overtime should be considered when calculating annual leave under section 13.9 of the Handbook.

3. The NHS Staff Council has agreed a Framework Agreement which provides for corrective payments to be made to eligible employees in connection with any allegedly underpaid holiday pay relating to overtime payments not having been included in holiday pay under Section 13.9 or the Working Time Directive or the Working Time Regulations 1998 up to and including 31 March 2021.

4. View the Framework Agreement.

Public Sector Equality Duty

5. In approving the Framework Agreement, careful consideration was given by the Secretary of State for Health and Social Care to his obligations under the Public Sector Equality Duty (PSED) imposed by section 149 of the Equality Act 2010.

6. In summary, the PSED requires that a public authority must, in the exercise of its functions, have due regard to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it

7. The protective characteristics covered by the Equality Act 2010 are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

8. View the equality assessment undertaken by the Secretary of State for Health and Social Care.

NHS employers

9. NHS employers covered by the Framework Agreement must give due consideration to their obligations under the PSED and equality considerations more widely under the Equality Act 2010 in relation to those NHS staff who should be considered for a corrective payment.

10. NHS employers are likely to be assisted in this regard by the Equality Assessment.

Regularity criteria in Framework Agreement

11. In giving due consideration to equality issues arising from the Framework Agreement, as referred to in paragraph [9] above, NHS employers should be aware of equality considerations that may arise in respect of the eligibility criteria relating to working regular overtime.

12. Clause 2.4 of the Framework Agreement sets out the criteria NHS staff must meet to be eligible for a corrective payment. Clause 2.4(b) provides that:

• they must have received payments in respect of ‘overtime’ (as defined in paragraph F) in a minimum of 4 months out of any of the 12 months in the financial year 2019 to 2020 (1 April 2019 to 31 March 2020) or 2020 to 2021 (1 April 2020 to 31 March 2021)

13. During the financial year 201 to 2020 and 2020 to 2021, there may be staff who have been unable to work regular overtime where they usually might do so due to circumstances arising from a protected characteristic under the Equalities Act 2010 and may not satisfy the regularity requirements set out in clause 2.4 of the Framework Agreement.

14. To mitigate this, NHS employers are urged actively to consider whether the criteria for eligibility should be adjusted in order to ensure that those with a protected characteristic impacted by such circumstances are not disadvantaged.

15. Some examples of areas where NHS employers should consider whether adjustments should be made to the regularity requirement in clause 2.4(b) of the Framework Agreement are set out below.

Example 1: pregnancy and maternity

16. During the two-year period, staff who are pregnant may choose to work fewer hours (if any) beyond their contracted hours, they may also be on long-term sick leave, or shielding for a reason relating to their pregnancy. Staff on maternity leave will not be in active employment.

17. In these instances, staff may not meet the eligibility criteria and employers are actively urged to consider whether the regularity requirement should be adjusted to mitigate the risk that pregnant staff and those on maternity leave are excluded.

18. For staff who are pregnant and continue in active service but choose to reduce the extent to which they work beyond their minimum contracted hours, employers are urged actively to consider relaxing the test of regularity to, for example, two occasions of overtime within the period of 12 months.

19. Relaxing the regularity criteria for those staff who are either pregnant or on maternity leave would mitigate the risk that they are excluded from consideration for a corrective payment.

Example 2: disability

20. Disabled staff may have been on disability related long-term sick, they may also be shielding, self-isolating and working from home for a reason relating to their disability which reduces their opportunity to work additional hours where they might usually do so.

21. For disabled staff who experience greater difficulty meeting the eligibility criteria due to their disability, employers are actively urged to consider whether the regularity requirement should be adjusted, as set out in example 1 above, to mitigate the risk that disabled staff are excluded from consideration for a corrective payment.

Example 3: gender reassignment: including transgender

22. There may be some instances when extensive surgery, relating to gender reassignment, may result in long-term absence (4 weeks or more). In these cases, the same approach to cases of long-term absence because of a disability, would apply because of the protected characteristic of gender reassignment. That is employers are actively urged to consider whether the regularity requirement should be adjusted, as set out in example 1 above, to mitigate the risk that these staff are excluded from consideration for a corrective payment.