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Recent employment cases
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Holiday’s during sickness can be carried over to the next leave year
During 2009 we reported on the cases of Stringer and others v HM Revenue and Customs and Pereda v Madrid Movillad SA both of which were decided in the European Court of Justice.
Stringer established that a worker who has been prevented from taking annual leave due to sickness absence should be allowed to carry that holiday entitlement forward to the next leave year. In Pereda the ECJ went further to say that where an employee has booked time off work as annual leave but is then absent from work due to illness during that period, the worker should be able to take that holiday later in the year, or, if that is not possible, they should be permitted to carry it over to the next leave year.
The Employment Tribunal has now decided, in Shah v First West Yorkshire Limited, that the UK legislation governing holidays, the Working Time Regulations, should be interpreted so as to give effect to the decisions in Stringer and Pereda.
The Tribunal found that Mr Shah, who broke his ankle and was off work because of this injury during a period of pre-booked holiday absence, was entitled to take this holiday at a later date. Furthermore, as his injury prevented him from returning to work until the next leave year, he was entitled to carry this holiday over to the next year.
This is the first time that the issue of sickness during annual leave has been tested at the Employment Tribunal since the decisions in Stringer and Pereda. As it seems likely that Tribunals will apply this decision and take a similar stance in the future, employers may wish to review their holiday and sickness policies to make sure that they are compatible.
Court of Appeal held that an agency worker was not protected from discrimination
The Court of Appeal has held, in Muschett v HM Prison Service, that a temporary agency worker was not an employee of either the Prison Service, who he was carrying out work for, or the agency that supplied him, for the purposes of unfair dismissal or discrimination legislation.
The Court based their decision on the fact that there was no obligation on the Claimant to work for the Prison Service and that he could have terminated his work with them at any time by giving notice to the agency.
The outcome of this case is likely to have repercussions for agency workers as those working under similar arrangements to the Claimant may also find themselves outside the protection of discrimination legislation.
Repudiatory breaches by an employer cannot be remedied
In the recent case of Buckland v Bournemouth University Higher Education Corporation the Court of Appeal held that where an employer has committed a repudiatory breach of an employee’s contract of employment it is not possible for the breach to be “cured”.
The Claimant was a university professor. Due to an unusually low pass rate among the Claimant’s students his head of department authorised a re-marking exercise without the Claimant’s consent. The Claimant complained about the head of department’s behaviour and a report was prepared which found in the Claimant’s favour. However, despite the favourable report, the Claimant resigned in response to his head of department’s actions and brought a claim for constructive unfair dismissal.
The Court of Appeal confirmed that the report did not cure the University’s initial breach and the Claimant was still entitled to resign in response to it. The Court also confirmed that in constructive unfair dismissal claims the breach should be assessed objectively and not with reference to the band of reasonable responses which is used in unfair dismissal cases.
This decision makes it clear that it is important for employers to do things right first time when managing employees rather than expecting to be able to remedy any problems through a subsequent grievance process.
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