UK: Still Sick of the Working Time Regulations? - Where are we now after the decisions in Stringer and Pereda?

Last Updated: 14 July 2010
Article by Ben Collins

A talk to the Employment Lawyers Association

In Birmingham on 26 May 2010

INTRODUCTION

1. Where are we now after the decisions in Stringer and Pereda? I posed this question almost exactly six months ago in a talk given to ELA members in London. At the time I took the view that the question would have different answers for different groups of people. Employers might be worried. Employees might be optimistic. Lawyers hoped to be busy. What was and undoubtedly remains true is that the decisions of the ECJ and the House of Lords answer a number of questions, sidestep others and pose still more.

2. Six months on, surprisingly little has been clarified. My own experience suggests that many employers and employees have preferred to settle what are often low-value claims rather than risk the uncertainty of appellate litigation.

3. This talk will consider:

  1. what the decisions say about the operation of the Working Time Directive;
  2. what impact they have on the interpretation and status of the Working Time Regulations;
  3. what their effect is upon existing UK litigation; and
  4. what are the prospects for the future.

STATUTORY PROVISIONS

The Rights

4. The starting point must be the Directive.1 The Regulations were enacted in order to implement the Directive and must be construed so as to give effect to its spirit and intention. Article 7 provides:

7.1 Member states shall take the measures necessary to ensure that every worker is entitled to be paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

7.2 The minimum period of paid annual leave may not be replaced by an allowance in lieu, except when the employment relationship is terminated.

5. This very broad obligation has been given effect by means of regulations 13 to 17 of the Working Time Regulations 1988.

6. The right to take annual leave is derived from Article 13(1):

Subject to paragraph (5),2 a worker is entitled to four weeks' annual leave in each year.

7. The period of four weeks leave has been extended by regulation 13A to provide for a further 1.6 weeks (from 1 April 2009 – or 0.8 weeks from 1 April 2008). This is intended to allow the worker four weeks statutory leave in addition to the eight statutory bank holidays. This provision is not derived from the Directive but it is likely that it will be treated in the same way by the Courts.

8. Crucially, regulation 13(9) provides that:

Leave to which a worker is entitled under this regulation may be taken in instalments, but-

(a) it may only be taken in the leave year in respect of which it is due, and

(b) it may not be replaced by a payment in lieu except where the worker's employment is terminated.

9. Regulation 17 provides:

Where during any period a worker is entitled to... annual leave both under a provision of these regulations and under a separate provision (including a provision of his contract), he may not exercise the two rights separately, but may, in taking... leave during that period, take advantage of whichever right is, in any particular respect, more favourable.

10. The employee can thus elect whether to rely on contractual or statutory entitlements, but cannot separately claim both so as to double her entitlement.

11. As to the amount of pay, regulation 16 provides that a worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulations 13 and 13A at the rate of a week's pay in respect of each week of leave; the starting point being that there should be no loss of basic pay by reason of taking annual leave.3

12. As to the dates of the leave, regulation 15 provides that the worker may elect when to take leave (by giving notice pursuant to regulation 15(1)), subject to the right of the employer to give notice (pursuant to regulation 15(2)) requiring leave to be taken (or not taken) on specific days.

13. Finally, regulation 14 provides for payment in lieu of annual leave not taken at the date of termination of employment.

14. Note that "worker" is defined widely by regulation 2 as:

"an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment..."

The Remedies

15. Regulation 30 provides that the remedy for a failure to allow the employee to take annual leave to which they are entitled is that the tribunal:

(a) shall make a declaration to that effect;

(b) may make an award of compensation to be paid by the employer to the worker.4

16. The amount of the compensation is what the tribunal considers to be just and equitable in all the circumstances having regard to the employer's default in refusing to permit the worker to exercise his right and any loss sustained by the worker.

17. The remedy for failing to make a payment in respect of periods of annual leave under regulations 14 or 16 is that the tribunal,

shall order the employer to pay to the worker the amount which it finds to be due to him.5

18. Thus the remedy for failing to allow the worker to take leave is by way of compensation to be assessed; the remedy for failing to pay is by way of an order to repay a debt.

BACKGROUND – EARLIER CASE LAW

19. Before the decision in Stringer, the EAT had grappled on a number of occasions with the question of when a worker could claim arrears of holiday pay. For reasons identified below, the cases are of more than historical interest.

20. In List Design v Cantley 6 and Canada Life v Gray 7 the EAT held (in the context of claims under regulation 16) that,

"it is unnecessary for actual holiday to be taken to claim arrears of holiday pay".

21. The EAT in Kigass Aero Components v Brown8 found that,

"an entitlement to annual leave arises under reg. 13(1) if a claimant is or has been a "worker" during the whole or part of a leave year. Nothing more is required. There is no requirement that in order to be a "worker" some work needs to have been done. There is no express provision in the Regulations that annual leave is, and is only, leave to be absent from what would otherwise have been "working time".

22. However, it went on to conclude that the right to claim holiday pay only accrued when the leave was applied for and "duly taken". That conclusion is plainly inconsistent with List Design and Canada Life.

23. These decisions have been subjected to less judicial scrutiny than they might have been since a large number of claims were stayed behind Stringer, which was heard in the Court of Appeal in 2005.9 The EAT's decisions will no doubt be revisited in the near future, and almost certainly by the Court of Appeal. I consider them further below.

STRINGER IN THE ECJ

24. The case was referred to the ECJ before it came before the House of Lords and decided the crucial questions whether a worker is entitled to paid annual leave while on sick leave; and correspondingly whether she is entitled on termination to pay in lieu of annual leave untaken while on sick leave.

25. The Court began by noting that

"the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations..."

26. The significant weight which the Court attaches to the right is reflected in the Court's approach in both Stringer and Pereda (see below). Moreover it reflects earlier case law – see in particular R v Secretary of State for Trade & Industry ex parte BECTU10 (qualifying period for entitlement to annual leave unlawful) and Merino Gomez v Continental Industrias del Caucho SA (right to take annual leave at a time other than during maternity leave).11 The ECJ stressed that the worker is entitled to "actual rest, with a view to ensuring effective protection of his health and safety."

27. The Court contrasted the purposes of annual leave (rest, relaxation and leisure) with the purpose of sick leave (recovery from being ill). It concluded that, while it may be permissible for workers to be prevented from taking annual leave while on sick leave, that can only be done where the worker is given the opportunity to take the annual leave at a later date. Furthermore, while it may be possible for the right to annual leave to be lost at the end of a leave year, that is subject to the proviso that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the Directive.

28. Crucially, the Court held that,

"the right to paid annual leave conferred by Directive 2003/88 itself on all workers... cannot be made subject by a member state to a condition concerning the obligation actually to have worked during the leave year laid down by that state."

29. This is of potentially very great significance because it suggests that Stringer might apply not only to cases of sickness absence but to other cases where the employee is not in fact at work.

30. In summary the ECJ held:

(i) The entitlement to annual leave is not affected by sickness absence. The worker is not required actually to have worked during the leave year.

(ii) A worker off sick throughout the year in which his or her employment terminated is therefore entitled to her payment in lieu in full.

(iii) Annual leave may be taken at a time when the worker is off sick.

(iv) Legislation may prevent workers from taking annual leave during periods of sickness, but only if the worker has the opportunity to take the leave after the return to work (for example by allowing the worker to carry over leave to the following year). It is equally acceptable for a worker on sick leave to take paid annual leave during that sick leave, rather than carry it over.

STRINGER IN THE HOUSE OF LORDS

31. The task of the House of Lords was considerably simplified by the ECJ's decision. Little or no consideration was given to the question whether the claimants were entitled to payment under the WTR, the parties having agreed that, following the ECJ's decision, employees are entitled to take annual leave while off sick. It was agreed by the parties that regulation 13(9) was consistent with the Directive because, although it does not permit carry over of leave, the alternative of allowing paid annual leave during sick leave was permitted (see 29(iv) above). This issue was not the focus of argument in the Lords, but has resurfaced following Pereda (see below).

32. The remaining problem was whether a failure to make such payments constituted an unauthorised deduction from wages for the purposes of section 13 ERA 96. The House of Lords concluded that payment for annual leave (and payment in lieu of annual leave on termination) amounted to wages for the purposes of section 27 ERA, and that any deduction thereof fell within section 13.

33. It follows that a complaint about a failure to make payments in these circumstances may be brought to the tribunal either under regulation 30 of the WTR or under section 23 ERA. The advantage of the latter is that the limitation provisions in section 23(3) are more generous in that they allow a claim to be brought within 3 months of the last of a series of deductions, thus potentially extending liability over a much longer period. The question of time limits is dealt with below.

PEREDA

34. Mr. Pereda was employed by the organisation responsible for towing away illegally parked vehicles in Madrid. He was off sick during his period of annual leave. He asked to take his annual leave at another time and was refused. On the basis of Stringer, which concluded that there is no bar to taking annual leave and sick leave at the same time, that was on the face of it a permissible approach. The ECJ disagreed.

35. Relying on Stringer, the Court reiterated the different purposes of sick leave and annual leave. It went further however:

It follows from the foregoing and, in particular, from that stated purpose of the entitlement to paid annual leave that a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave...12

where that worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period.13

36. The Court further held that if the request for annual leave could not be accommodated in the same leave year, it might have to allow leave in a subsequent leave year.

37. Plainly, this approach was not anticipated by the parties or the House of Lords in Stringer. It seriously calls into question regulation 13(9)(a). I return to this question later.

38. The effect of the Stringer and Pereda, taken together is that the employee on sick leave has a choice. He cannot be required to take his annual leave while sick. Most employees, no doubt, will choose to take annual leave at a later date. The employer can refuse to grant particular dates, but must allow the leave to be carried over if necessary. The employee off on long-term sickness absence will continue to accrue annual leave throughout. Having said that, an employee who has exhausted her entitlement to sick pay may prefer to take annual leave while on sick leave in order to obtain pay for that period.

39. Save that the employer retains some control over timing, the power to choose when to take and when to carry over annual leave lies, in cases of sickness absence, with the employee.

THE FUTURE OF THE REGULATIONS

40. As set out above, it is difficult to see how regulation 13(9)(a) can survive Pereda. The ECJ have held that if necessary, leave must be carried over. Regulation 13(9)(a) makes this requirement impossible.

41. Further difficulties arise with regard to regulation 14 in terms of the way in which the payment in lieu of annual leave is calculated. The formula set out at regulation 14(3)(b) provides only for leave in the final leave year. It is impossible, by this mechanism, to take into account leave carried over from previous years:

(3) The payment due ... shall be-- ...

(b) ... a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula--

(A x B) - C

where--

A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A;

B is the proportion of the worker's leave year which expired before the termination date, and

C is the period of leave taken by the worker between the start of the leave year and the termination date.

42. Where the employer is a public authority, there is a good argument to say that regulation 13(9)(a) should be disapplied. In the case of private sector employees, there is a theoretical possibility of bringing a Francovich claim, although this may not be an attractive option given the complexities of such a claim and the relatively small sums involved. The ECJ in BECTU 14 observed that,

Article 7(1) of [the Directive] imposes a clear and precise obligation on member states to achieve a specific result by virtue of which they are to "take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.

43. Although this clearly suggests that Article 7.1 has direct effect, the Court of Appeal in British Airways v Williams 15 reached the opposite conclusion (the case has since been to the Supreme Court,16 which did not find it necessary to rule on this issue, but made a reference to the ECJ on others). The uncertainty may well be enough to persuade the majority of employees that they are better served by a claim against their employer.

44. Another possibility is that, in the absence of any amendment, the Courts may attempt to interpret the regulations imaginatively so as to make them consistent with the Directive as it is now understood to be (as recently illustrated by the decision of the EAT in Attridge Law v Coleman17), for example by reading in words such as, "save where the worker has through ill health not had the opportunity to take that leave within the leave year".

45. I am aware of one example of a case in which precisely this approach was taken – the ET decision of Shah v First West Yorkshire Ltd (EJ Forrest, Leeds, 20.11.09). The EJ construed regulation 13(9)(a) by adding:

"Save where a worker has been prevented by illness from taking a period of holiday leave, and returns from sick leave, covering that holiday leave, with insufficient time to take that holiday leave within that leave year; in which case, they must be given the opportunity of taking that holiday leave during the following leave year."

46. Sadly the case was not appealed (no doubt, as ever, due to the low value of the claim) so we remain without guidance from the EAT on this issue.

47. It might be said that this tortuous formulation demonstrates perfectly why this is a rather unsatisfactory approach; and why, given the clear terms of Pereda, the Regulations ought not to survive without being amended. However, the last government plainly had other priorities and the new one may well do too. That being so, this imaginative interpretation may be the only option.

48. Finally, it should also be noted that it may be possible to prevent a worker from taking their full entitlement to leave if an application is made at the end of the leave year and the employer rejects the application (for example for operational reasons) by means of a regulation 15(2) notice. The IDS Handbook on Working Time suggests that,

"Employers would not be able to use a notice requirement effectively to defeat a worker's entitlement to annual leave in any given leave year."

But in Lyons v Mitie Security Ltd 18 the EAT took a different view, and remitted the issue to the tribunal for consideration on the facts.

OTHER KINDS OF ABSENCE

49. Stringer and Pereda are limited to cases of sickness absence. Workers may be absent from work for all sorts of other reason, however. The most obvious examples are perhaps career breaks, unpaid leave and disciplinary suspensions. It remains unclear whether the same approach should be taken to these kinds of leave. There is a good argument to say that it should – in particular given the ECJ's conclusion that the right to annual leave is not conditional upon the worker's actually having worked during the period.

50. Perhaps the most interesting of these types of absence is the career break, not least because of its increasing use. It also presents a useful point of analysis since the idea of annual leave while on a career break is instinctively odd. Yet taking into account the approach taken by the ECJ in both Stringer and Pereda, it is difficult to escape the conclusion that annual leave may well continue to accrue during many career breaks.

51. The starting point must be consideration of whether an employee on a career break is a "worker" for the purposes of the WTR (see regulation 2, cited above). The key question is whether the individual "has entered into or works under" a contract of employment during the career break.

52. There is no requirement to work on a career break so the claimant cannot be said to "work under" a contract of employment. The key question, then, is whether the individual has "entered into" a contract of employment. One approach might be that on going on career break the contract of employment comes to an end, to be superseded by a new contract governed by the terms and conditions of the employer's career break policy. Those terms would include the right to re-enter the contract of employment at the end of the career break but would not constitute a contract of employment.

53. There is little reported authority relating to the question as to whether a contract of employment continues during a career break. One of the few reported cases is Curr v Marks & Spencer plc [2003] IRLR 74, in which the Court of Appeal considered whether the claimant's contract of employment continued during a career break for the purposes of continuity of employment. The Court concluded that it is necessary to look at the terms of the career break agreement in order to understand the position. It found (as had the ET and EAT) that there was no contract of employment during the career break. Indeed it went further and held that there was no arrangement to preserve continuity for the purposes of section 212(3)(c) ERA. Peter Gibson LJ expressed the appropriate test as follows:

"There must be mutual recognition by the arrangement that the ex-employee, though absent from work, nevertheless continues in the employment of the employer..."

54. It was stressed that all the circumstances had to be considered; in the particular case those of greater importance included that Ms Curr had been required to resign, lose her staff benefits and pay off a housing loan. Other factors taken into account were that the break was (apart from the periods during which she would have to return to work) unpaid; that the restriction on other work was limited to a requirement of prior consultation, and that the right to return to work after the break imposed no obligation on the employee to do so.

55. It will be a question of fact in any particular case whether the claimant was "under a contract of employment" at the relevant times. If she is, she will be treated as a "worker" for the purposes of the WTR. If she is so treated, I think that it will be difficult to argue that the statutory entitlement to annual leave does not apply, in particular given the ECJ's view that there is no requirement that the worker has actually performed any work during the period in question.

56. Arguably such a reading would conflict with the purpose of the Directive, since it would be likely to discourage employers from allowing career breaks; or would encourage them to make the terms of such breaks more unfavourable. Nevertheless, that appears to be the effect of the ECJ decisions to date. It remains to be seen how this issue is dealt with in the appellate courts here – and in the ECJ – when it arises, as it surely will.

57. Stringer and Pereda are all the more likely to apply in cases of shorter absences such as unpaid leave and suspensions. The worker will continue to be under a contract of employment and will continue to accrue annual leave. Pereda may indeed assist employers in these types of circumstance in that it makes explicit their ability to determine the timing of annual leave.

LITIGATION ISSUES

Time Limits

58. As set out above, a complaint about a failure to make payments in respect of annual leave may be brought either under regulation 30 WTR or under section 23 ERA. The significant advantage of the latter is that the limitation provisions in section 23(3) are more generous than those in the ERA.

59. Section 23(3) provides:

Where a complaint is brought under this section in respect of—

(a)     a series of deductions or payments, ...

the references in subsection (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

60. This permits a claim to be made within three months of the last of a "series of deductions". By contrast, the time limit under the WTR is three months from the beginning of the period from which the period of leave would have begun.

61. The issue of time limits was dealt with by the House of Lords in Stringer only in part. It considered claims under regulations 14 and 16 WTR, and held (as set out above) that such claims can be brought as claims for unauthorised deductions under the ERA. But it did not deal with claims under regulation 13 alleging a refusal to permit annual leave to be taken at all. This is an issue which is likely to arise in many claims.

62. From an employee perspective, it is perhaps bizarre to suggest that a claim for non-payment of holiday pay attracts a different, and much more generous, time limit that than a claim for refusal to allow the holiday to be taken at all. Indeed it may be that tribunals take the same instinctive view. The most effective means to avoid the difficulties posed by the shorter time limit is by use of the older EAT decisions in List Design and Canada Life to frame the claim under regulation 16 rather than regulation 13.

63. If the EAT was right in the earlier cases to conclude that

"it is unnecessary for actual holiday to be taken to claim arrears of holiday pay",

it must be arguable that arrears can be claimed as a debt, whether the holiday was taken (or even applied for) or not. If on the other hand the correct approach is that of Underhill J in Kigass Aero – that arrears are only recoverable when leave is "duly taken", the arrears may not be so taken.

64. It is not clear whether the EAT, if faced with this approach today, would follow List Design and Canada Life or Kigass Aero. There is an argument that only in List Design was this conclusion part of the ratio, such that it is the decision which ought to be followed.

65. On the other hand, employers will argue that a claim under regulation 13 is quite different in nature from the sort of claim covered by the ERA. It is essentially a claim for compensation for loss of amenity (taking also into account the default of the employer) rather than for recovery of wages owed. It is not, of its nature, capable of being treated in the same way. Indeed regulation 30 WTR itself characterises claims under regulation 13 differently from claims under regulations 14 and 16:

(1) A worker may present a complaint to an employment tribunal that his employer--

(a) has refused to permit him to exercise any right he has under--

(i) regulation ... 13 or 13A;...

or

(b) has failed to pay him the whole or any part of any amount due to him under regulation 14(2) or 16(1).

66. The Court of Appeal in Coors Ltd v Adcock19 drew a distinction between claims for liquidated sums (which are capable of being dealt with under the ERA) and claims for unliquidated damages to be assessed, which it found were not. Wall LJ summarised the position as follows:

Part II of ERA 1996, as I read it, is essentially designed for straightforward claims where the employee can point to a quantified loss.

67. In all, there is a good argument that the shorter time limit applies to regulation 13 claims. The battleground may well be over attempts by claimants to characterise such claims as regulation 16 claims. My own view is that the List Design approach is simply inconsistent with the structure of the legislation, which provides for two different kinds of remedy depending upon whether the leave has been taken or not. But as in many respects on this topic, it may well prove to be the claimants who have the upper hand here.

68. It is also necessary to consider the position of the employee who did not apply to take annual leave (in many cases arguing that she was unaware of the right to take it, or actively discouraged by a policy preventing it). Is she precluded from claiming for untaken leave on the basis that she never asked to take it? Much will depend on the outcome of the inevitable case in which the EAT (followed, no doubt, by the Court of Appeal) is asked to prefer either List Design or Kigass Aero. The employer's argument is not an attractive one, all the more so where the employee was aware that his application would be rejected. But as a matter of strict interpretation, it is difficult to see why a claim for refusal to allow annual leave should succeed in circumstances where the annual leave was never requested.

69. Finally it is necessary to consider what is likely to be treated as a "series of deductions" for these purposes. A fairly generous approach tends to be taken (see, for example Group 4 Nightspeed v Gilbert20.) In most cases it is likely that the deductions will - of their very nature - be made on the same basis and for the same reasons. I would expect few Respondents to succeed by showing that the deductions do not form part of a series, but all will depend upon the facts of the case.

Remedies

70. Claims under regulations 14 and 16 will be relatively straightforward to quantify. A claim under regulation 14 may include claims for earlier years if the claimant has remained off sick for a long period of time.

71. As for claims under regulation 13, it is far from certain what is the appropriate measure of compensation. The employee will have suffered no pecuniary loss, but will have suffered loss of amenity. It is not clear whether regulation 30(4)(b) envisages compensation for loss of amenity – there seems no reason why it should not. What is clear is that the employer's default may be taken into account (see Miles v Linkage Community Trust Ltd.21), although in most cases there will be no element of bad faith.

CONCLUSIONS

72. Stringer and Pereda raise more questions than are dealt with in this talk. The answers will not be known until the EAT, the Court of Appeal and possibly the ECJ have given us their views. In the meantime, these are interesting times for those advising both employers and employees. The need for a good holiday has never been greater...

Footnotes

1. Directive 2003/88/EC

2. Which provides for leave for part of a year being dealt with on a pro rata basis

3. This provision is in most cases straightforward; but may not be where supplementary payments (e.g. flying bonuses for airline pilots) are made depending upon the activity undertaken – see British Airways v Williams [2010] UKSC 16 – the issue has been referred to the ECJ.

4. Regulation 30(3)

5. Regulation 30(5)

6. [2003]IRLR 14

7. [2004] ICR 673

8. [2002] IRLR 312

9. Ainsworth v Commissioners of Inland Revenue [2005] EWCA Civ 441; [2005] IRLR 465

10. Case C-173/99; [2001] IRLR 559

11. Case C-342/01; [2004] IRLR 407

12. Paragraph 22

13. Paragraph 25

14. See above

15. [2009] EWCA Civ 281; [2009] IRLR 491

16. [2010] UKSC 16

17. EAT, 14 July 2009

18. [2010] UKEAT 0081/09/CEA

19. [2007] EWCA Civ 19; [2007] IRLR 440

20. [1997] IRLR 398

21. [2008] IRLR 602

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.