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Priya Magar

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An employee’s entitlement to holiday, and the pay he or she receives while taking holiday, has been a hot topic in the courts over the past few years.

In the case of Plumb v Duncan Print Group Ltd, the Employment Appeal Tribunal (“EAT”) has returned to the topic of an employee’s entitlement to holiday while on sick leave.

In 2009, the European Court of Justice (“ECJ”) in the cases of Stringer and Others v HM Revenue & Customs and Pereda v Madrid Movilidad established the following principles:

  • Workers who are off work on sick leave continue to accrue annual leave
  • Workers can take holiday during sick leave, however if they are unable or do not wish to do so, they can take it at a different time, even if this means carrying it over to the next holiday year

These decisions were all made under the EC Working Time Directive (“Directive”). However, they conflict with regulation 13(9) of the Working Time Regulations 1998 (“WTR”) which implements the Directive in the UK. Specifically, this provides that statutory annual leave must be taken in the same year in which it is accrued and cannot be carried over into the following leave year.

Continue Reading Holiday entitlement during sick leave – Where are we now?

On 15 July 2015, the Government published a draft Trade Union Bill which sets out changes to tighten the law on industrial action.

What is the current position?

There is no general right to take industrial action under UK law. In most cases, employees taking industrial action will be acting unlawfully since by doing so, they will be acting in breach of their contracts of employment. A trade union calling for industrial action will therefore be inducing such breaches.

However, under current legislation, provided statutory conditions are met, employers are unable to sue trade unions for inducement and certain other torts, or to dismiss employees fairly for taking industrial action.

Much of the legislation regulating industrial action was introduced in the 1980s by the then -Conservative Government. The current provisions are now contained in the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). These provisions are complex.

Continue Reading Trade Union Bill Published

In April last year we posted a blog on the change in law on paternity leave focussing on the new right to Additional Paternity Leave (APL) which came into force on 6 April 2010. Under this, eligible employees whose children are due to be born on or after 3 April 2011 will have the right to take up to 6 months’ APL. The right will also apply in the case of adoptions where parents are notified of a match on or after 3 April 2011.

Since the implementation of the right to take APL, a question has arisen on whether an employer who offers an enhanced maternity pay package to its female employees should also offer enhanced paternity pay to those employees who take APL.

This issue has become particularly pressing since a recent ruling of the Court of Justice of the European Union (CJEU) in the Spanish case of Roca Álvarez v Sesa Start España ETT SA (ECJ Case C-104/09). Spanish law provides that female employees are entitled to time off during the course of the working day to feed a child under the age of 9 months. This right was originally introduced to facilitate breastfeeding by working mothers. However, this right was subsequently developed so as to allow fathers to take this leave provided both parents were employed. Therefore mothers who are employed were always entitled to this leave while fathers who also have employed status would only be so entitled if the child’s mother is also an employed person. This difference under the provision was held by the CJEU to amount to sex discrimination. In reaching this decision, the CJEU noted that the purpose of this leave was no longer strictly associated with breastfeeding but was actually a measure which reconciled family life and work for both parents. Therefore this purpose could be achieved by fathers taking the time off work as well as mothers. In addition, the fact that this leave could be taken by the father meant that this measure could not be regarded as being to ensure the protection of the special relationship between a mother and her child.Continue Reading Enhanced Paternity Pay

The European Court of Justice (ECJ) has ruled that the protection of patients from declining performance of dentists due to their age may be a legitimate aim justifying difference in treatment on the grounds of age. However, whilst setting a maximum practising age of 68 for German national health service dentists is potentially lawful under the EC Equal Treatment Directive, it was not justifiable because German law permitted private dentists to practice beyond 68. The age limit was justifiable, however, on a different basis, namely because it gave opportunities to younger workers to join the health service(see Petersen v Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe). In another decision, the ECJ held that a German law which restricted applications to join the fire service to those under the age of 30 could be defended as a genuine occupational requirement. (see Wolf v Stadt Frankfurt am Main)
Continue Reading Justifying Age Discrimination