Wright, Johnston & Mackenzie Solicitors

Long Term Sick Are Entitled To Holiday Pay

The Advocate-General of the European Court of Justice (ECJ) has published their opinion in Stringer v HMRC (previously known as Ainsworth v HMRC).

Background
This case has been a long-running saga with the Court of Appeal deciding, back in April 2005, that the right to four weeks’ statutory paid holiday under the Working Time Regulations 1998 does not continue to accrue whilst an employee is off on long-term sick-leave. However, the case was subsequently appealed to the House of Lords, who referred the question to the ECJ.

The Advocate-General (whose opinion is normally followed by the full court) has stated that entitlement to paid holiday does accrue whilst a worker is absent on sick leave. Workers are not permitted take their holiday while they are on sick leave and, following termination of the contract, workers are entitled to a compensatory payment to reflect accrued but untaken holiday leave, even where the worker was on sick leave for the full holiday year.

Practical implications
This finding, if followed by the ECJ, could have widespread implications for employers. Prior to this decision, and in accordance with the terms of the Working Time Regulations 1998, the collective wisdom was that the right to holiday pay did not continue to accrue when an employee or worker was on long-term sick leave.

« Back to top

Tribunal Has Wide Uplift Discretion

It was held by the Employment Appeal Tribunal (EAT) in the recent case of CEX Ltd v Lewis that employment tribunals have ?broad discretion? in ruling on uplifts of awards and that, in this case, the tribunal was correct to limit the uplift to 10 per cent of the award.

Factual background
The claimant was employed in a senior management position with the respondent. Following a company restructuring, the claimant?s position was made redundant and the claimant was dismissed. However, the respondents did not follow the statutory disciplinary procedures, rendering the dismissal automatically unfair.

Legal background
Under the terms of the Employment Act 1996, statutory employment dispute resolution procedures must be followed in the event of dismissal situations arising. This includes redundancy situations.
If these procedures are not followed, the tribunal is entitled to uplift any award by up to 50% percent at its discretion. In this instance, it may have been expected that an uplift of greater than 10% would be awarded due to the lack of proper procedure but EAT upheld the decision of the Tribunal only to award a 10% uplift.

Practical implications
This case highlights that, even in cases where there is a blatant flouting of proper procedure, albeit in this case due to ignorance of the law, the Employment Tribunal has complete discretion as to the amount of uplift to award.

« Back to top

Fuelling The Flames Of Breach Of Contract

In the recently decided case of GAP Personnel Franchises Ltd v Robinson, it was held that an employer was in breach of contract when it reimbursed the claimant?s fuel expenses at a lower rate than was agreed in the contract of employment. This was an unlawful deduction, although the issue of whether the claimant had impliedly agreed to this lower rate by continuing to work without protest was remitted to the Employment Tribunal as the EAT held it not to have been properly considered.

Factual Background
The claimant accepted a job as a manager with the respondent. The terms of employment stated that fuel expenses were to be paid at the rate of 25p per mile. It became apparent to the claimant that his expenses were being paid at a rate less than 25p per mile and a query was raised with the respondent?s HR manager. The claimant was informed that the respondent?s company policy was to pay those using their own vehicles 25p per mile and those with company vehicles, 15p per mile. The claimant took this matter no further and it was only on resignation from the company, some months later that a claim was made for mileage at the rate of 25p per mile.

The Tribunal held that the respondent was in breach of contract as they had unilaterally varied the terms of the contract. The claimant was therefore entitled to an award in the sum of the difference between the contractually agreed mileage rate, and the rate paid.

« Back to top

Eat Gives Guidance On Discrimination Compensation

In the case of Al Jumard v Clywd Leisure Ltd & Others, the claimant suffered a catalogue of poor treatment at the hands of the respondent and was dismissed. An Employment Tribunal held that the claimant was unfairly dismissed and suffered both race and disability discrimination. Compensation awarded included a “global figure” of ?13,000 for injury to feelings for discrimination. The claimant challenged the Tribunal’s approach to the assessment of compensation.

Factual background
The respondent employed the claimant for a number of years. The claimant was disabled and was of Iraqi origin. The claimant raised a grievance claiming that he had been subjected to discriminatory treatment. The grievance was not substantiated and a series of incidents ensued, resulting in the claimant lodging a Tribunal claim for disability and race discrimination.

The Employment Tribunal held that the claimant had been unfairly dismissed and that no fair disciplinary investigation had taken place. The respondent appealed the decision, with one of the grounds being that the aspects of race and disability should have been considered separately. The EAT allowed the appeal and remitted the case to the same tribunal. The EAT judge handed down detailed guidance on how to approach a case that involved different heads of discrimination.

The EAT judge stated that where there were many discriminatory acts extending over a lengthy period of time, some exclusively racial, some disability related and some both. It is wrong to take a general broad brush approach to assessment of compensation. Compensation for the different types of discrimination should, in the first instance, be separately assessed as far as it is possible to do so. At the end of the exercise, a Tribunal must stand back and have regard to the overall magnitude of the global sum to ensure that it is proportionate and that there is no double counting in the calculation (i.e. no sums have been counted under both headings).

Practical implications
This finding has important implications for compensatory awards in employment cases. A Tribunal cannot simply fix a sum without due consideration for the different types of discrimination. Where there are specific acts falling into a category of discrimination, these should be assessed separately.

« Back to top

Tribunal Discretion Does Not Extend To Substituting Its Own View In Ascertaining Redundancy Pool

The recent case of Look Ahead Housing & Care Ltd v (1) Odili (2) Mendes held that where a redundancy situation arises, an Employment Tribunal cannot carry out their own assessment of the merits of the candidates.

Factual background
Following a restructuring, the claimants were dismissed as redundant. They failed to meet the standard required for appointment to a new post that had been created. The Employment Tribunal concluded that a genuine redundancy situation caused their dismissal, but that they were unfairly selected for redundancy. A fairer process would have resulted in their applications for new posts being successful. The respondent appealed.

The EAT allowed the appeal to the extent that it remitted the case back to the Tribunal for rehearing. The EAT confirmed that the central question was ?could a reasonable employer have reasonably concluded that the two claimants were not suited to the new jobs of income recovery?? The respondent genuinely assessed the new posts as being two grades higher than the old and assessed each employee by identical interviews and by literacy and numeracy tests. Both candidates fell substantially short of the mark. The Tribunal had considered the jobs very similar and that the assessments had ignored other factors that it considered would have changed the result, such as past performance. The EAT judge held that ?the Tribunal here has…fallen foul of the injunction not to descend into the arena and carry out its own assessment of the candidates?. The Tribunal did not critically assess the marking process, but carried out their own assessment of how the marks ought to have been assessed.

Practical implications
This is an important finding in relation to the discretion of an Employment Tribunal. The finding has highlighted that the Tribunal cannot simply substitute their own views for the views of the respondent and instead have to critically analyse the approach taken by employers when dismissing employees. Whilst Tribunals have wide discretion over many areas, this is one area to which discretion does not extend.

« Back to top

What A Difference A Day Makes

In the recent case of Joshi v Manchester City Council, it was held that where a claim is made to the employment tribunal and the three month extension under the statutory grievance procedure is granted, the total time limit for the claim is six months less one day and not six months.

Legal background
Under the terms of the Employment Act 1996, an Employment Tribunal has the discretion to extend the normal period a claimant has to submit a claim from three to six months, where it was not reasonably practicable for the claim to be presented with in three months. The Employment Act 2002 (Dispute Resolution) Regulations 2004 provide specifically for the extension of the time limit where the employee reasonably believes that internal grievance procedures are ongoing.

Factual background
The claimant resigned her employment and subsequently sent a grievance letter to the respondent. During this process the initial three-month time limit expired, and in accordance with the Dispute Resolution Regulations an extension to the time limit was granted. The grievance procedure was concluded and the claimant then proceeded to submit her claim to the Tribunal on the six-month anniversary of her resignation. The Tribunal concluded that the time limit had, in fact, expired the day before. It was further held that it had been reasonably practicable for the claimant to have submitted the application in time and that, in the face of her having both legal and trade union advice on the matter, the excuse of ignorance of the time limit was not acceptable.

Practical implications
Prior to this decision, it had been held in the case of Rainbow International v Taylor that the time limit for submitting claims was six months. This decision has disagreed with the previous decision and the six months less one day position would seem to be the time limit in future cases. This has important implications for claimants and legal agents, who will need to be aware of the time limits. It must also be noted that in Tribunal applications without an extension, the time limit is three months less one day.

« Back to top

Would you like this Briefing by email?

We strive constantly to improve the services we provide. If you would prefer to receive this Briefing by email please let us know on .(JavaScript must be enabled to view this email address)

« Back to top

Further Information

For further information on these or any other employment issues please contact:

Martin Stephen .(JavaScript must be enabled to view this email address) 0141 248 3434

Andrew Wilson .(JavaScript must be enabled to view this email address) 0131 221 5560

Liam Entwistle .(JavaScript must be enabled to view this email address). 0141 248 3434

For information on our HR Services, please contact:

Julia MacDonald .(JavaScript must be enabled to view this email address) 0141 248 3434

For information on Praesidium Employment Law Protection, please contact:

Geraldine Leonard .(JavaScript must be enabled to view this email address) 0141 248 3434

« Back to top