Advice on holiday pay and whistleblowing By Terry Brandon, BALPA National Officer Q I was interested in your article in the August edition of On The Radar regarding the 2.3m a union member received in compensation for being dismissed for whistleblowing. Could you explain a little more about what whistleblowing is what does it cover? Workers who blow the whistle by making a protected disclosure a disclosure concerning an alleged criminal offence or other prescribed wrongdoing have the legal right not to be dismissed or subjected to any other detriment for having done so. This is why the compensation in the above case was substantial. If an employee is unfairly dismissed due to whistleblowing, they can be awarded compensation that includes loss of earnings and potentially damages for injury to feelings. The amount of compensation is determined by the Employment Tribunal based on the specific circumstances of the case, including the financial losses suffered by the whistleblower and the impact on their career prospects. There is no statutory cap on the amount of compensation that can be awarded, so the highest award can vary depending on the individual case. However, the statutory protection applies where a worker makes a disclosure about an employers alleged wrongdoing that, in the reasonable belief of the worker, is made in the public interest and is made either directly to the employer or to another person who the worker reasonably believes is responsible for the wrongdoing. Q Should sector pay or block hour pay be included in my calculation when I take annual leave? Almost certainly. The leading case in this matter is Williams vs British Airways taken by BALPA. This groundbreaking case in which the European Court of Justice said that all workers must be paid their normal remuneration when taking their four weeks Civil Aviation Workime Reg (different from the usual WTR) statutory holiday. The ECJ said that pay must include any component that is linked intrinsically to the performance of the workers task. Following this judgment, nearly all UK airlines entered negotiations to correct their calculation and those who had employment tribunal claims also received back pay. Some airlines including Jet2 resisted, but due to a collective grievance their position was eventually corrected. Looking at your contract of employment, pay slips and staff handbook, your employer (an airline that does not recognise BALPA) provides slightly over the four weeks statutory holiday entitlement and calculates variable pay for four weeks but not for the additional non-statutory days. This is unusual and quite cumbersome to calculate. BALPA is approaching this airline to discuss how to look at extending the payment for all leave days. Q If you have a question youd like to put to Terry or any of our other BALPA experts, email TheLog@balpa.org I was invited into a probation review meeting to discuss my performance. I was then invited to a second meeting to be told that I had been dismissed on the grounds of capability. What does this mean, and can I contest this? Capability relates to skill, aptitude, health or any other physical or mental quality. This means that this statutory category covers both dismissals, where someone is too ill to perform their role and where someone fails to meet the performance standards. Before carrying out this dismissal, the ACAS code states that the employer should give warnings, explain clearly the standards required or offer additional training. The risk of dismissal should have been given in advance, with time to demonstrate improvement. In addition, your employer does not allow you to appeal the decision to dismiss you during your probation period. In most circumstances, you will need two years service to bring a claim for unfair dismissal, demonstrating the importance of not relying upon what is incredibly weak UK employment law but instead using strong collective bargaining to ensure that processes are fair and robust, and allows the individual every chance to prove themselves to an employer. There have been similar cases in your airline, where pilots have been dismissed for little more than not fitting into the airlines culture. BALPA legal services are reviewing these cases to see if there is any angle to challenge these appalling practices. INDUSTRIAL ISSUES Know your rights