The Working Time Regulations 1998 (WTR) which implemented the Working Time Directive (93/104/EC) came into force on 1 October 1998. The Regulations provide amongst other things, that a worker is entitled to 20 days holidays per year (reg 13) and that if such an entitlement is not taken at the time of termination of employment, the worker is entitled to be paid in lieu of accrued holidays (reg. 14).
The "catch" to this statutory right is that the right to 4 weeks paid holiday per year "does not arise until a worker has been continuously employed for 13 weeks" (reg 13(7)(8). This means that casual workers and those on short term contracts of less than 13 weeks are denied paid holiday.
Some employers have resorted to the use of 12 week contracts and this was evident in the private teaching profession where teachers were contracted to teach English to foreign students on short term courses lasting 12 weeks, although one fixed term contract was invariably succeeded by another. In those cases, the employees had to argue that they had continuity of employment to rely on the WTR.
Good news for casual and short term workers. Bad news for small employers?
The European Court of Justice has recently held in Broadcasting, Entertainment, Cinematographic and Theatre Union v UK (c-173/99) that the 13 week qualifying period under the WTR is illegal and contrary to the Working Time Directive. The EJC stressed that the right to annual leave of 4 weeks is an absolute right necessary to ensure health and safety of workers. As a consequence, the government has now proposed changes to the WTR. It recommends that a worker’s holiday be accrued for each month of employment (i.e. 1/12 x 20 days) and for any days to be rounded up or down to the nearest whole day. The consultation period ended on 26 July 2001. (go to www.dti.gov.uk/er/work_time_regs/palconsult.pdf).
The draft Fixed Term Employees (Prevention of less favourable treatment) Regulations 2001 were enacted pursuant to the Fixed Term Working Directive (99/70/EC). The Directive seeks to prohibit unequal treatment in respect of terms and conditions of employment between permanent employees and those on fixed term contracts. In particular, short term employees should enjoy the same contractual benefits as permanent staff (eg. use of company car and access to health care schemes although pay and pension schemes are excluded). Any different treatment must be justified by the employer. An employee does not need to prove different treatment by reason of discrimination but simply that another employee who is a permanent staff is on better terms. Failure to ensure equal treatment may render the employer to constructive unfair dismissal claims.
The draft Regulations were expected to come into force on 10 July 2001 but the Government following a consultation period has deferred implementation by a further 12 months. It remains unclear if the Regulations will apply to employees only or the wider category of workers.
What is clear is that the deluge of Directives from Europe is increasingly granting greater employment protection rights to those in non standard employment.
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