UK: Employment Legal Update November 2018

Last Updated: 7 December 2018
Article by Hewitsons LLP

Holiday Pay

In Max-Planck-Gesellschaft v Shimizu, the European Court of Justice ('ECJ') has ruled that workers do not automatically lose the right to receive payment in lieu of untaken annual leave from previous leave years when employment ends.

Mr Shimizu worked for Max-Planck under a fixed-term contract. Two months before the end of his employment on 31 December 2013, Max-Planck invited him to take his remaining paid annual leave. He took 2 days off and sought payment of almost €12,000 in lieu of the rest (51 days' leave from 2012 and 2013). Max-Planck refused to pay. Under German law payment in lieu of outstanding leave on termination of employment is allowed, however, leave must be taken during each calendar year and can only be carried over in certain situations. A worker's right to leave, and subsequently to payment in lieu, therefore lapses at the end of each year. The German Federal Labour Court was unsure if this is consistent with EU law (particularly the Working Time Directive) and referred the matter to the ECJ.

The ECJ ruled that EU law prevents national law which results in an automatic loss of these rights without first assessing if the worker had a real opportunity to take the leave. The ECJ held that employers must ensure workers are in a position to take leave, should encourage them to do so and must also inform them in good time that leave will be lost if not taken within the relevant period. The ECJ held that the burden will be on employers to show they have met these obligations diligently.

Therefore a worker who has not taken his full annual leave entitlement does not automatically lose the right to paid holiday unless the employer has diligently brought to the attention of the employee that they will lose the holiday unless they take it.

Employment Status

In Addison Lee Ltd v Lange and others, the Employment Appeal Tribunal upheld the decision that drivers working for professional private hire taxi firm Addison Lee ('AL') were workers and not self-employed contractors.

The drivers had entered into agreements describing them as independent contractors. They hired cars with AL's branding on them and each driver was given a handheld device to log into when working. This assigned jobs, which drivers were expected to accept. Refusal of a job without a satisfactory reason resulted in the drivers being subject to sanctions. Drivers however choose the days and times they worked, and the contract said there was no obligation on either side to provide or do work.

The drivers brought claims for holiday pay and national minimum wage, which they would only be entitled to if they were legally classed as 'workers' and not self-employed contractors. The Employment Appeal Tribunal felt the contracts did not accurately reflect the reality of the arrangements and held that there was a mutual obligation to provide and perform

This follows a string of similar cases within the last year, with Uber drivers and Hermes couriers being given worker status (although subject to appeal) as a result of which the government is expected to introduce legislation to clarify employment status and rights in this area.

Part-Time Workers

In the case of British Airways v Pinaud the Court of Appeal has found there was less favourable treatment of a part-time worker where the employer only paid an employee 50% of a full time salary for 53.5% of full time hours.

Mrs Pinaud joined British Airways ('BA') in 1985 as a cabin crew member. Following maternity leave in 2005, she switched to part-time and had to work 130 days a year. In contrast, full-time crew had to work 243 days a year. Despite only being paid 50% of full-time salary, Mrs Pinaud worked 53.5% of full-time hours (an extra 8.5 days). She claimed this was less favourable treatment under the Part-Time Workers (Prevention of Less Favourable) Treatment Regulations. 628 other BA employees brought similar claims, which awaited the outcome of this test case.

The Employment Tribunal and Employment Appeal Tribunal ('EAT') found there was, on the face of it, less favourable treatment of a part-time worker. However, the EAT disagreed with the tribunal's approach in the first instance in rejecting BA's defence that making payment to the employee in this way was objectively justified.

Upon further appeal the Court of Appeal upheld the finding of less favourable treatment and has remitted the matter to a fresh Employment Tribunal to consider whether BA can establish a defence by justifying the less favourable treatment and, if not, what the remedy should be.

Vicarious Liability

In the recent case of Bellman v Northampton Recruitment Limited, the Court of Appeal has held an employer liable for injury caused at a spontaneous afterparty following an office Christmas party.

Mr Bellman was employed by Northampton Recruitment Limited ('NR'). NR held a Christmas party for the staff and their partners at a golf club in 2011. Mr Major, the Managing Director, oversaw the running of the party and arranged for NR to pay for food, drinks, taxis and accommodation for most guests at the nearby Hilton Hotel.

An impromptu afterparty at the Hilton was suggested for more drinks, which were mostly paid for by NR. Around half of the staff attended. After 2am, a disagreement broke out about a new employee who was being paid a lot more than the others. Mr Major, intoxicated and angry, summoned the employees to lecture them about his authority; how he owned the company and would do what he wanted. Mr Bellman (non-aggressively) challenged him, at which point Mr Major lost control and punched Mr Bellman multiple times. The injuries lead to severe brain damage.

The Court had to decide whether NR was vicariously liable for Mr Major's actions. It considered the nature of Mr Major's job and whether there was a sufficient connection between this and the wrongful conduct to hold NR accountable. Mr Major had control over NR and how he conducted his role. He did not have set hours and the business operated around the clock. Maintaining managerial authority was central to his role. Although the afterparty was separate from the planned Christmas party, Mr Major had run the first part of the evening as Managing Director, organised the taxis and arranged for NR to pay for the drinks. It was not a purely social event just happening to involve colleagues. When he lectured his employees, he was acting as Managing Director and misused his position to assert authority over his subordinates. In these circumstances, the Court of Appeal held there was a sufficient connection to hold NR liable.

WHAT TO LOOK OUT FOR

Employment Tribunal Fees May Be Re-Introduced

The Ministry of Justice has suggested it may re-introduce fees for employment tribunals. The Employment Tribunal fees were originally introduced in July 2013 and ranged between £160 and £1,200, until the Supreme Court declared the scheme unlawful in 2017. The MoJ is still refunding those who paid the fees, and had reimbursed £15.8 million by April 2018.

Although there are no immediate plans for a new fee scheme, the MoJ hopes to get the fee level right this time; and has stated that it wants to find a balance that helps fund the court system without being disproportionate and denying access to justice.

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 Topics
 
Related Articles
 
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions