Case Law Round Up

02 November 2005

To bring you up to date, here is a brief overview of some recent, key cases from 2005.

Holiday Pay During Long Term Sick Leave

The Court of Appeal’s (CA) decision in Commissioners of Inland Revenue v Ainsworth and others held that, the right to four weeks statutory paid holiday under the Working Time Regulations 1998 does not continue to accrue whilst a worker is off on long term sick leave, having exhausted their entitlement to contractual and statutory sick pay. This overturns the earlier Employment Appeal Tribunal (EAT) decision of Kigass Aero Components v Brown (2002).

However, the decision deals only with workers who are absent for the entire holiday year. Unfortunately, it offers no guidance on the position of a worker who is absent for a significant part (but not all) of the holiday year. So, for example, if a worker is absent for 11 months and then returns to work for one month, it remains unclear what the statutory entitlement to holiday will be. It is not clear whether it has accrued during the 11 month period (even though the worker cannot take the holiday during this period). This latter aspect will hopefully be clarified by a subsequent case.

The case also decided that, if a worker is claiming the non-payment of holiday pay, they are no longer able to claim backdated holiday pay representing a series of deductions over a number of years.

Compromise Agreements

The CA decision in Hinton v University of East London held that it is not sufficient for employers to simply include in a compromise agreement a general release clause, followed by a list of claims that may or may not apply to the individual in question. The case is a stark warning to employers who use off the peg compromise agreements that are not tailored and/or do not cover and list all potential claims that have been raised or are reasonably contemplated at the time that the agreement is signed. It is important that the compromise agreement sets out clearly what is agreed between the parties so that both parties are clear as to the precise nature of the claims the employee is waiving when signing the agreement.

Agency Worker or End User Employee?

The EAT decision in Cable and Wireless plc v Muscat is another in a long line of cases that follow the CA decision in Dacas v Brook Street Bureau (UK) Limited (2004). Employment Tribunals are now looking behind the contractual documentation to establish the true nature of the working relationship between the agency worker and the end user. If, in practice, there is mutuality of obligation and sufficient day to day control exercised by the hiring end user over the agency worker, there is likely to be an implied employment contract between the two. It now seems probable that if an agency worker is retained for 12 months or more by the same end user, they will qualify for the right not to be unfairly dismissed by the end user (and acquire other employment rights).

Discrimination on the Grounds of Religion or Belief

The Employment Equality (Religion or Belief) Regulations 2003 (the regulations) came into force on 2 December 2003. They outlaw discrimination, direct and indirect, harassment and victimisation on the grounds of religion or belief in employment and vocational training.

The Employment Tribunal case of Williams-Drabble v Pathway Care Solutions Limited concerned a practising Christian employed as a residential social worker who could not work on Sundays because she attended church. As a result of a rota change she was required to work two Sunday shifts per month, which meant that she was unable to attend church on these days. The employee resigned.

The tribunal found that the employer had indirectly discriminated against the employee. By imposing a permanent rota change that required the employee to work on a Sunday, the employer had applied a provision, criterion or practice that, whilst applying equally to all staff, put practising Christians at a particular disadvantage. Moreover, the employer was unable to justify the rota change as being a proportionate means of achieving a legitimate aim.

It is clear that since the implementation of the regulations, employers need to be flexible and sensitive to their workers in order to accommodate amongst other things; cultural and religious holidays, restrictions and changes to working hours and rotas and dress codes.

For more information please contact Andrew Masters, Partner & Head of Employment.
 

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