http://www.mulberryssolicitors.com Wed, 25 Jan 2012 10:35:58 +0000 en hourly 1 http://wordpress.org/?v=3.0.1 http://www.mulberryssolicitors.com/acas-guidance-on-the-olympic-games http://www.mulberryssolicitors.com/acas-guidance-on-the-olympic-games#comments Wed, 25 Jan 2012 10:35:38 +0000 admin http://www.mulberryssolicitors.com/?p=608 Continue reading →]]> Everyone is working together to make the Olympic and Paralympic Games a great success, but there are some real issues employers need to start thinking about now. Your employees will fall largely into two groups:

•those who plan to take time off during the Games because they hope to be:
◦a spectator: 6.6 million tickets were up for grabs and many people have a good idea of what events they will be attending.
◦a volunteer: the selection process to choose the 'games makers' has begun and successful applicants should be informed from early 2012
•those who have no plans to take time off during the Games but may either:
◦hope to watch some tv or internet coverage while at work or may wish to discuss some sort of temporary flexible working arrangement
◦get fed up with all the fuss and any perceived favouritism shown to those with sporting interests
As the countdown to the Games continues, Acas will be publishing new and updated guidance to help you:

•manage attendance: it's time to start talking to your employees about their plans. You may keep your policy simple - maybe have a 'first come, first served' policy for booking leave - but it may help to draw up some guidelines
•work flexibly: whether or not you currently have flexible working in your business, it may be something to consider, even as a short-term measure
•deal with performance issues: there may be problems around staff watching lengthy coverage via their computers. Why not plan for popular sporting events in advance - perhaps giving staff access to a tv during agreed times?
•understand the legal rights of volunteers and the responsibilities you have towards them and how volunteering can help your business. Volunteering can help develop your employees' skills but you obviously need to protect your business interests. Many volunteers will be agreeing to ten days work, with three days training prior to the Games. You may decide to match an employee's leave with special leave. Acas will be publishing advice on volunteers in the Autumn.
Q&A on Volunteering
Employer
Q Three of my staff have got volunteer positions at the Olympics. I can only let one go. What's the best way of handling this?
A They key to avoiding potential misunderstanding or conflict is to have a clear policy in advance and communicate this to all staff - that way, everyone knows where they stand and you look after your business needs. Your policy need not be very complicated - a simple process of 'first come, first served' may be enough.

Q I have a member of staff who has got a volunteer place at the Olympics. Do they need to use their own holiday?
A Employees have no legal right to take time off for volunteering. You can decide to give paid or unpaid time off or, if not, the employee may wish to take annual leave. Many employers encourage their employees to volunteer to help develop their skills and give employees an agreed quota of paid days leave per year to volunteer - typically, about two days a year.

Q I have a member of staff who has got a volunteer place at the Olympics. Am I expected to pay for them while they volunteer?
A There is no legal right to be paid for volunteering. Volunteering is something employees often do because of their own interest, but increasingly employers are recognising the business benefits of volunteering - in terms of developing skills and supporting the local community. If your employee is taking special leave then it would be up to you to decide whether that will be paid or unpaid.

Employee
Q I've got a volunteer place at the Olympics but my boss won't let me have the time off.
A. There is no legal right to time off to volunteer. Your employer will need to look at their business needs when allocating time off. Check with your line manager if the company has a policy on volunteering. You may be able to reach a compromise - in terms of taking annual leave or unpaid leave for some of the days.

Q I've got a volunteer place at the Olympics but I don't quite have enough holidays left to take. Is there anything I can do?
A Discuss this with your employer, they may have a policy for employees wishing to volunteer as many businesses now actively encourage employees to get involved in community or charitable projects. Your employer may allow you time off, either unpaid or paid, or even match your annual leave with special leave.

Q Will I get paid if I volunteer at the Olympics?
A There is no legal right to be paid for time off from your employer for volunteering, however your employer may allow you special leave with or without pay, or you may wish to take paid annual leave.

Read about what Acas has been doing behind the scenes to help the Games run smoothly.

Training course - Managing the impact of the London 2012 games on the workplace
Acas has designed a training course for employers that gives guidance on the issues they may need to think through arising from the London 2012 Games such as planning staff holidays, working from home, and coping with difficult journeys to work. Details of the course can be found on our training page.

Related training courses

Absence management

Employing People - A Practical Introduction

Flexible working

Performance management

Skills for supervisors


]]> http://www.mulberryssolicitors.com/acas-guidance-on-the-olympic-games/feed 0 http://www.mulberryssolicitors.com/employment-law-in-2012-whats-coming-up http://www.mulberryssolicitors.com/employment-law-in-2012-whats-coming-up#comments Wed, 04 Jan 2012 13:54:33 +0000 admin http://www.mulberryssolicitors.com/?p=535 Continue reading →]]>

• new tribunal award limits come into force

6 March

1. consultation closes on fees in tribunals and the EAT

April

• expected that qualifying period for unfair dismissal will increase to 2 years

• various tribunal reforms to take effect, e.g. increase in deposit orders and costs awards

• unpaid parental leave to increase to 4 months

• working time rules to be amended to allow holiday to be carried forward in limited circumstances

• maternity/paternity/adoption pay increases

• SSP increases

October

• pensions auto-enrolment begins for larger employers

• national minimum wage may increase, depending on what the Low Pay Commission recommends in February

Developments with no confirmed date but likely to be progressed in 2012

• penalties for employers who breach of employment rights

• early compulsory ACAS conciliation of all tribunal claims

• amendment of whistleblowing rules so that disclosures about breaches of employment contracts are no longer covered

• compromise agreements to be simplified

• consultation on 'protected conversations' between employers and staff about employment issues without risk of dispute

• consultation on rapid resolution scheme as alternative to tribunal for low-value and straightforward disputes

• Acas Disciplinary and Grievance Code to be 'looked at' with a view to a simpler dismissal process

]]> http://www.mulberryssolicitors.com/employment-law-in-2012-whats-coming-up/feed 0 http://www.mulberryssolicitors.com/new-tribunal-limits http://www.mulberryssolicitors.com/new-tribunal-limits#comments Tue, 20 Dec 2011 15:17:56 +0000 admin http://www.mulberryssolicitors.com/?p=532 Continue reading →]]>
The notable changes are:

• the limit on the amount of a week’s pay for the purposes of calculating, among other things, statutory redundancy payments and the basic award for unfair dismissal will increase from GBP 400 to GBP 430
• the maximum compensatory award for unfair dismissal goes up from GBP 68,400 to GBP 72,300
• guarantee pay increases from the rate of GBP 22.20 a day to GBP 23.50 a day; and
• the minimum basic award in cases where the dismissal was unfair by virtue of health and safety, employee representative, trade union, or occupational pension trustee reasons will increase from GBP 5,000 to GBP 5,300.

The new rates apply where the event giving rise to compensation or payment occurs on or after 1 February 2012. For example, in the case of unfair dismissal the rates apply to all dismissals where the effective date of termination falls on or after this date. Where the dismissal or relevant event falls before 1 February, the old limits will still apply, irrespective of the date on which compensation is awarded.

]]> http://www.mulberryssolicitors.com/new-tribunal-limits/feed 0 http://www.mulberryssolicitors.com/government-to-set-up-new-equality-advisory-and-support-service http://www.mulberryssolicitors.com/government-to-set-up-new-equality-advisory-and-support-service#comments Wed, 14 Dec 2011 18:20:24 +0000 admin http://www.mulberryssolicitors.com/?p=526 Continue reading →]]>
The announcement comes in response to the consultation 'Building a fairer Britain: Reform of the Equality and Human Rights Commission', which set out proposals for new arrangements for providing equality information, advice and support following the Government's decision to cease funding for the Equality and Human Rights Commission's (EHRC) helpline and legal grants programme in 2012. Although the majority of respondents were against the establishment of the new service, the Government claims it will provide the same level of support on human rights as the current EHRC helpline.

The Government decided against supporting a specific discrimination and human rights education programme, or providing central government funding for discrimination claims in addition to legal aid. However, the Government confirmed that legal aid will continue to be available for claims relating to breaches of the Equality Act 2010 after the legal aid reforms planned for April 2013. As part of those reforms, people applying for civil legal aid for discrimination claims will usually be expected to apply via a 'mandatory telephone gateway'. The gateway call operator will then assess a caller's specific needs on a case-by-case basis and will, as appropriate, refer them to a face-to-face advice service if this is considered necessary.

The Government also intends to support the not-for-profit advice sector via its recently announced Advice Services Fund and will undertake a review of free advice services.
]]> http://www.mulberryssolicitors.com/government-to-set-up-new-equality-advisory-and-support-service/feed 0 http://www.mulberryssolicitors.com/house-keepers-and-the-minimum-wage http://www.mulberryssolicitors.com/house-keepers-and-the-minimum-wage#comments Mon, 12 Dec 2011 18:12:41 +0000 admin http://www.mulberryssolicitors.com/?p=522 Continue reading →]]>
The test is to be approached holistically, there is no one single factor, such as the provision of accommodation, meals, or the sharing of tasks, which is decisive, says the EAT in Julio & ors v Jose & ors, a series of conjoined appeals.

Whilst the exemption is to be construed narrowly, and particular regard should be given to the various factors in Regulation 2 (2), the entire arrangement and the nature of the relationship are relevant, with consideration to the general dignity of the worker's situation.

The "sharing of tasks" relates to sharing tasks done by the family as a whole, not sharing the work done by the worker under the contract. The EAT rejected a literal approach to the requirement that the worker undertakes tasks jointly with the family, or that there should be some equivalence between the tasks done by the family and the worker, noting that every family is different and tasks are often divided up between family members.

The judgment suggests, obiter, that an employer exploiting or mistreating an NMW-exempt domestic worker would not be treating them "as a family member" and would, by implication, lose the exemption from the NMW, with potentially expensive consequences.

]]> http://www.mulberryssolicitors.com/house-keepers-and-the-minimum-wage/feed 0 http://www.mulberryssolicitors.com/discrimination-on-grounds-of-marriage-to-a-particular-person-unlawful http://www.mulberryssolicitors.com/discrimination-on-grounds-of-marriage-to-a-particular-person-unlawful#comments Tue, 06 Dec 2011 16:42:41 +0000 admin http://www.mulberryssolicitors.com/?p=519 Continue reading →]]>
D was employed to establish a northern office for the ICCM. When a grievance about changes to her contract was rejected she went off sick alleging, among other things, sex discrimination and victimisation. The ICCM then decided not to open the northern office and wrote to D stating that it proposed to delete her post. D then resigned, claiming that she had been paid less sick pay than anyone else in her circumstances, and that, as the treatment was on the ground of her marriage, it breached the SDA. A tribunal held that the discrimination was not on the ground of D's status as a married person but because of the particular person she was married to - there was evidence of antipathy between the Chief Executive of ICCM and D's husband. D appealed.

The EAT allowed the appeal. It noted that the Civil Partnership Amendment Act 2004 had altered S.3 SDA so that protection from discrimination was no longer on the basis of 'marital status', but applied where the reason for treatment was that the person was married. The EAT followed its decision in Chief Constable of the Bedfordshire Constabulary v Graham, where it held that preventing a woman from working in the police division of which her husband was commander was marital discrimination. The EAT considered that this was a marriage-specific reason as the wife's appointment would not have been blocked if the husband had not been head of that division. Thus, the EAT held that less favourable, marriage-specific, treatment is unlawful - a person who is married or in a civil partnership is protected from discrimination on the ground of that relationship. The case was therefore remitted to the tribunal to determine whether D had been discriminated against on that basis.

Note that protection from discrimination on the basis that a person is married (or a civil partner) has now been recast in Ss.8 and 13 of the Equality Act 2010.

Report Provided by ELA ]]> http://www.mulberryssolicitors.com/discrimination-on-grounds-of-marriage-to-a-particular-person-unlawful/feed 0 http://www.mulberryssolicitors.com/the-agency-workers-regulations-how-they-will-affect-employers http://www.mulberryssolicitors.com/the-agency-workers-regulations-how-they-will-affect-employers#comments Tue, 06 Dec 2011 14:26:20 +0000 admin http://www.mulberryssolicitors.com/?p=516 Continue reading →]]>
There was a time when the use of temporary staff was seen as the human equivalent of the use of disposable cups: very difficult to manage without in modern society, sometimes messy to get rid of, unless the thrower aims in a perfect line towards the bin, but otherwise there to do the available job without having encroached on storage space and without continuing to use any of the resources or running costs associated with permanency.

UK law is now changing, with the new Agency Workers Regulations 2010 to implement the 2008 European Temporary Workers' Directive, giving temporary workers who are engaged through employment businesses many of the rights enjoyed by permanent members of staff.

Many employment businesses/agencies (for simplicity's sake, referred to as employment businesses from now on - but see later) have employed and continue to employ workers who are then sent on individual assignments of varying lengths. Because the temporary worker is the operational stock-in-trade of the agency, it waits anxiously to welcome its material back for recycling when the assignment comes to an end.

Traditionally, unless the user wanted to pay a fee to the agency, whether hefty or moderate, the contract with the user prevented them from merely offering a permanent job to the temporary worker. However, the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (CEAEB Regulations) restricted this process, allowing for job offers to be made external to the employment business only under certain circumstances.

There is also a not-infrequent situation seen in employment tribunals where a temporary worker whose assignment has come to an end claims to have been employed by the user and seeks to establish the rights that accrue to regular employment. These include the right to bring a claim for unfair dismissal against the organisation for whom services have been provided, perhaps a claim for unlawful deduction from wages, holiday pay or notice pay: in short, any claim that a "regular" or permanent employee is entitled by law to bring.

Business effect

The general term of reference in this article is to an employment "business" but, as will be seen, the organisation that provides the services of temporary workers is either an employment business or employment agency. The arrangement operates by a contract, often a contract of employment, between the business and the temporary worker, or "temp", in which the temp agrees to go on assignments offered by the business and only to be paid for work actually done. Thus, if there is a resting phase between assignments, the temp will not receive any pay, although he or she will still be entitled to the accrual of holiday pay relating to the period of time when work was actually carried out.

The new Agency Workers Regulations 2010 give temporary workers, in many respects, access to the rights enjoyed by permanent workers."

The business enters into a separate contract with the client (end-user) that needs work to be carried out on an assignment of varying length, perhaps even on a day-to-day basis. Until 1 October 2011, the legal aspects of the supply of agency workers will be governed by the CEAEB Regulations.

Although we talk routinely about "employment agencies", we are here referring principally to "employment businesses" because the term "employment agency" describes an organisation that deals with the recruitment of staff.

When a person, sent by an agency, is appointed to the job in question, the customer pays for the agency's introduction and that is the end of the business relationship relating to that new employee. The employment business, on the other hand, is the purveyor of the disposable items that are used for varying lengths of time before being sent on to another assignment, if wanted or available.

The goal of the employment business is to retain its pool of workers. In order to do so, many businesses offer contracts of employment that identify the business as the employer. This secures, to a degree, the loyalty of the labour pool and reflects the income tax and national insurance position through which the necessary contributions must be made by whoever, at the least, is considered to be the employer, even if it is an employer that does not guarantee a place of work, hours of work and duration of assignment.

The CEAEB Regulations require the employment business to clarify in the contract with the worker whether the worker is in business on their own account (which may be the case where someone operates through their own company) or is actually the employee of the business: that depends on the specific circumstances of each contract.

Some contracts specifically exclude the creation of an employment contract between the worker and the employment business. In practice, whatever label is put on employment status in the contract, the courts will look at all the relevant factors in determining if someone is an employee, whether an employee of the employment business or of the organisation to which the worker has been assigned. The other situation that may need the court's determination is whether the person is not employed at all but is providing services while in business on their own account.

Who is an employee?

There is no conclusive test for deciding whether a person is an employee or self-employed. As long ago as 1994, the Court of Appeal explained in the case of Hall (Inspector of Taxes) v Lorimer that consideration must be given to "all aspects of the relationship [between the parties], no single factor being in itself decisive each may vary in weight and direction the object of the exercise is to paint a picture from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and evaluation of the overall effect".

Going back to 1968, the question of whether or not a person is an employee, as well as by whom he or she is employed, was considered in Ready-Mixed Concrete (South East) Limited v Minister of Pensions and National Insurance. The court should consider whether or not the worker agreed to provide his or her own work and skill in return for remuneration, did he or she work under the control of the alleged employer and, critically, were other provisions of the contract consistent with it being a contract of service?

From October 2011, temporary workers who have been engaged for 12 weeks will be entitled to the same access to aspects of the organisation's working pattern as its permanent, directly employed staff."

The importance of the difference between employed and self-employed status relates to the employer's responsibility for implementing the terms of the contract of employment and to ensure that statutory rights, such as holiday pay, are credited to the employee. When it comes to whether or not a person is employed by the business supplying that person to the user of the services, tribunal cases arise when a person who has provided services for a long period of time to a particular organisation believes that they have become an employee.

Under those circumstances, the court will give careful consideration to whether or not there was a contract between the using organisation and the person supplying the services. If there is a written contract between the parties setting out that the employment business is the employer bearing responsibility to paying the worker for work done, for holiday pay and for offering the assignment, albeit that it becomes long term, it is unlikely that a contract of employment will be construed between the worker and the user of his or her services.

Changing times

The new Agency Workers Regulations 2010 give temporary workers, in many respects, access to the rights enjoyed by permanent workers. At this point, the word "agency" now has the connotation of "business", hitherto used.

From October 2011, temporary workers who have been engaged for 12 weeks will be entitled to the same access to aspects of the organisation's working pattern as its permanent, directly employed staff. That includes overtime (if that is how the organisation works), ordinary work breaks, rest periods and night work.

Temps will receive the same holiday as permanent employees, but any holiday that exceeds the statutory minimum can be paid in lieu. Temps are also entitled to have access to the same facilities offered to permanent employees, such as canteens, childcare and any transport arrangements. This may cause problems for organisations that have, hitherto, not been put to the additional expense of providing such facilities and, indeed, may have used temporary workers because, in these respects, they are less expensive than permanent staff. However, the employer should not worry about transient increases in the expense of using temporary workers: they are now obliged to notify their temps of vacancies in the permanent workforce.

Many of the rights accruing to permanent staff will now accrue to temporary workers. It is appropriate to provide access to the employee handbook to any incoming worker supplied by an agency (but not self-employed workers), regardless of whether or not they have employment status within the organisation. This will facilitate access to, for example, the rights of pregnant women and nursing mothers, to which reference is made in the new Regulations that simply mirror rights already established.

Although the main benefit for temporary workers is the balancing of some of their terms and conditions of employment with those of permanent staff directly employed by the organisation, the Regulations exclude certain pay- and cash-related benefits such as pensions, contractual sick pay, maternity pay, redundancy pay, long-term schemes or profit-related pay, and bonuses for organisational performance.

The Regulations exclude certain pay- and cash-related benefits such as pensions, contractual sick pay, maternity pay, redundancy pay, long-term schemes or profit-related pay, and bonuses for organisational performance."

There are also differences in the treatment of temps who have worked for shorter and longer periods. From the end-user's perspective, it may be that there are some organisations that find it more expensive to use temporary workers as the Regulations require temps to have the same salary as an equivalent permanent employee.

Where pay rises are contingent on performance, it could be an indicator of employment status within the using organisation, were that organisation to carry out any relevant appraisal. This is a matter that will have to be covered in the contract between the employment business and the using organisation, so as to avoid a flurry of cases where temporary workers claim that the fact of an appraisal is an indicator of control by the user.

Cost benefit

On paper, the aim of the Directive is now enshrined in UK law. Temporary workers supplied by an employment business will, after 12 weeks on an assignment, acquire the right to similar pay and employment conditions as would have applied had they been recruited directly for the job that they are doing as a temporary worker.

The question of employment status, where there is uncertainty, will still be subject to the scrutiny of the courts: temporary workers will remain subject to the disposability treatment to which they have hitherto been subjected.

They are not going to be eligible for notice pay, they will have some access to bonuses, but not where performance-related. They will still not have the right to claim unfair dismissal, nor will they be eligible for redundancy pay when their services are terminated.

Maternity pay and company sick pay are just some of the benefits that temporary workers will not have unless they get a permanent job or undertake the next assignment of 12 or more weeks.

The TUC believes that the new Regulations will end "casualisation" in the workplace. Only time and the conflict between disposability and permanence will tell.


]]> http://www.mulberryssolicitors.com/the-agency-workers-regulations-how-they-will-affect-employers/feed 0 http://www.mulberryssolicitors.com/radical-changes-to-employment-law-by-coalition-government http://www.mulberryssolicitors.com/radical-changes-to-employment-law-by-coalition-government#comments Mon, 28 Nov 2011 14:07:48 +0000 admin http://www.mulberryssolicitors.com/?p=511 Continue reading →]]>
Vince Cable outlined the proposals in his speech to the manufacturers’ organisation, the EEF. Some of the most eye-catching are the unexpected ones that were not widely trailed before the speech. These include a proposal to remove protection for whistleblowing that relates to a worker’s own contract. Since the EAT’s decision in Parkins v Sodexho Ltd 2002 IRLR 109, an employer’s breach or likely breach of an employment contract has been a matter about which disclosures are potentially protected. In his speech, Vince Cable referred to this as a ‘loophole’, which would be closed. He also announced a call for evidence (see link below) on whether the 90-day minimum consultation period for collective redundancies should be reduced.

Among other proposals, the Government will also:
• seek views on introducing compensated ‘no fault’ dismissal for micro firms with fewer than 10 employees
• examine ways to ‘slim down’ and simplify dismissal processes, potentially working with Acas to change their Code, or publishing supplementary guidance for small businesses
• publish a consultation on two options for the introduction of employment tribunal fees. The first option would require an initial fee to lodge a claim then a second fee to proceed to a hearing. The second option would require those seeking an award above GBP 30,000 to pay more to bring a claim
• call for evidence (see link below) on proposals to simplify the Transfer of Undertakings (Protection of Employment) Regulations 2006
• consolidate 17 national minimum wage regulations
• consult in the spring on streamlining the regulatory regime for the recruitment sector, and
• create a universally portable CRB check that can be viewed online from early 2013.

As part of the response to the Resolving Workplace Disputes consultation (see link below), the Government has committed to:

• requiring all employment disputes to be offered Acas pre-claim conciliation before going to a tribunal
• increasing the qualifying period for unfair dismissal to two years from April 2012
• consulting in 2012 on ‘protected conversations’ to allow employers to have discussions with staff about retirement or poor performance, which could not be relied on in a tribunal claim
• an independent review of the employment tribunal rules of procedure, led by Mr Justice Underhill, to address concerns that tribunals have become complex, inefficient, and are no longer fit for purpose
• consulting on simplifying compromise agreements – renamed ‘settlement agreements’
• considering how, and whether, to develop a ‘rapid resolution’ scheme to offer a quicker and cheaper alternative to employment tribunals
• modifying the formulae for up-rating tribunal awards and redundancy payments to the nearest pound.

The Government claims this will save business GBP 5.4 million (net) a year.
]]> http://www.mulberryssolicitors.com/radical-changes-to-employment-law-by-coalition-government/feed 0 http://www.mulberryssolicitors.com/employees-on-long-term-sick-must-claim-holiday-in-order-to-be-paid http://www.mulberryssolicitors.com/employees-on-long-term-sick-must-claim-holiday-in-order-to-be-paid#comments Mon, 07 Nov 2011 10:52:58 +0000 admin http://www.mulberryssolicitors.com/?p=508 Continue reading →]]>
F, a nurse, injured her knee in an accident at work in November 2005. She went off on long-term sick leave and her entitlement to sick pay expired in August 2006. In November 2007 she was certified fit for a limited return to work and the Trust resumed paying her from that date but it did not prove possible to find her work. The Trust ceased paying her again in March 2008 and dismissed her later that year. It paid her in lieu of untaken leave accrued in the final leave year, which began in April 2008, but nothing in respect of the two previous leave years, during substantial parts of which she had been receiving no pay at all.

F brought a tribunal claim seeking payment in respect of four weeks’ leave for each of those two years. There was no dispute that she had accrued leave in those years but the tribunal found that she had to trigger the entitlement to be paid for it by giving notice under Reg 15, which she had not done. It noted that nothing in Stringer and ors v Revenue and Customs Commissioners and another case (Brief 871) suggested that Reg 15 should not apply to workers who are off sick. F had not shown any evidence that she was unable to take leave during her sickness. F appealed.

On appeal, F submitted that following List Design, as endorsed by Canada Life, the fact that she had not formally ‘taken’ her leave by serving notice did not matter. Underhill P noted that he should not depart from Canada Life unless he were satisfied that it was clearly wrong. He concluded that it was. In his view, the earlier EAT decision Kigass Aero Components Ltd v Brown (Brief 706) was plainly right that payment for annual leave under Reg 16 only arises in respect of leave actually taken. The fact here was that F did not take any holiday during the years in question. The ordinary rule is ‘use it or lose it’ and neither the wording nor purpose of Reg 14 (which gives a right on termination to pay in lieu of untaken leave) requires the revival of claims for holiday entitlement not taken in previous years. Underhill P noted that it might appear somewhat artificial for an employee who is not at work to have to give notice that part of her absence should count as holiday, but thought that merely reflected the artificiality of a period of long-term sickness counting as holiday at all.

Having considered the European authorities, particularly Pereda v Madrid Moviidad SA (Brief 887), Underhill P was satisfied that his conclusion was consistent with them. He thought it clear from Pereda that an employee on sick leave may choose to take annual leave during that absence or ask for it to be deferred until a later period. But it is for the employee to ask. If F had requested to take leave following her recovery, the Trust might have been obliged to accede to that request, and if she had not had the chance to take it before her termination supervened, Reg 14 might need to be construed as entitling her to a payment in lieu. But that was not what happened.

Underhill P briefly considered the merits of F’s alternative argument that the Trust was under an implied contractual duty to inform her of her right to request leave while absent sick. F relied on the House of Lords’ decision in Scally and others v Southern Health and Social Services Board and ors, which implied a duty on the employer to inform employees of a contractual benefit that the employee could not reasonably have been expected to know about. Underhill P held that Scally was distinguishable on the basis that it invoved a collectively-negotiated contract. In his view, absent particular circumstances, there can be no duty on an employer to advise his employees of their rights that arise instead as a matter of general law.
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