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Legalbrief
Sickleavecannotcountagainstholidayentitlement
KENBROUGH,ofUCATT’sLondon-basedsolicitors,OHParsons,writes
Imake no apology for yet again focusing this
issue on holiday entitlement and the right to
be paid holiday pay. This is an area of law
which has often been the front line in the battle
for workers’ rights, particularly in UCATT,
and the union can be justifiably proud of the
leading role it has taken since the Working
Time Regulations (WTR) came into force over
10 years ago.
Recently, the European Court of Justice (ECJ)
heard a case about holiday entitlement which
did not involve a UCATT member, but which
will have important ramifications for workers
across Europe.
The case, known as Pereda, concerned a
Spanish driver who had booked four weeks’
holiday. Unfortunately, due to what can only
be described as Sod’s Law, he had an accident
at work about two weeks before his holiday
was due to start, putting him out of action for
six weeks and therefore completely overlapping
with his holiday period. Not a wholly
unusual situation, and one in which I’m sure
many of us have unluckily found ourselves.
However, in this case, Mr Pereda quite reasonably
asked his employer for permission to
take “additional” holiday. Again, not unusually,
they refused.
The ECJ was asked to rule on the legality of
what the employers had done. In a welcome
ruling, they held that Mr Pereda’s period of
sick leave could not count towards his holiday
entitlement.
CORRECTION:InmylastpieceforBuilding
Workerregardingholidaypay,itstated:“Ifyou
leaveacompany’semployment,youmustbring
theclaimforholidaypaywithinthreeyearsof
thatdate”.Thiswasatypographicalerror,and
shouldhaveread“…youmustbringtheclaimfor
holidaypaywithinthreemonthsofthatdate”.
Apologiesforanyconfusionand/or
inconveniencecaused.
The ECJ confirmed that the whole purpose
of paid annual leave is to ensure a worker gets
to rest and enjoy a period of relaxation and
leisure, whereas the purpose of entitlement to
sick leave is simply to allow the worker to get
better; in other words, the two are not the
same, so if a worker decides not to take holiday
during a period of sickness, illness or incapacity,
his or her minimum entitlement to leave
under the WTR is not affected and the employer
must grant a “replacement” period of
leave so as to ensure the worker is able to actually
enjoy that period of relaxation and leisure.
The ruling makes it clear that this principle
is likely to apply in circumstances where the
worker falls ill or is incapacitated both before
the anticipated period of leave and during
such period.
For many years, some of the more progressive
employers have operated this system in
practice anyway. Now, the ECJ has made it
plain that all employers must do so.
● See advertisement on back cover; website:
[www.ohparsons.co.uk].
Moreemployeesarenow
abletorequestflexible
workingconditions
byGORDONBELL,ofUCATT’s
Scottishsolicitors,Dallas
McMillan
Since 2003, certain employees
with a minimum of 26 weeks
of continuous employment
with their employer have been
entitled to request flexible working
conditions. The right was initially
restricted to those employees with
children under six (or under 18 in
the case of disabled children). In
2007 it was extended to those who
cared for adult dependents. From
April 2009, however, the right now
applies to employees who have
parental responsibility for children
under 16 (or under 18 if disabled).
Points to note include the following:
● It is not a right to work flexibly:
it is a right to request to be allowed
flexible working.
● The employee must request the
flexible working well in advance, as
the process can take up to 12 weeks
to approve.
● The employer receiving a request
for flexible working must meet the
18●UCATTBuildingWorker●Autumn2009
employee to discuss it within 28
days.
● The employer must then inform
the employee in writing of their
decision within 14 days of that
meeting.
● If the request is approved, the
procedure effectively ends and the
parties simply have to agree implementation
of the new working
conditions.
● The employer can only refuse
the request for certain specific reasons
under the Legislation such as
(i) the additional cost-burden to
the business, (ii) a detrimental
effect it would have on quality of
performance; and (iii) an inability
to re-organise work among the
remaining employees.
● A complaint can be made to an
employment tribunal if the
employer has failed to comply with
the procedures, or has refused the
request for a reason not permitted
by the legislation. The tribunal can
award compensation of up to eight
weeks’ pay.
The extension of the right to
request flexible working will give
many more members the potential
to secure the flexible working patterns
that better suit their family
life. Requests can be made for a
variety of flexible working conditions
such as part-time work, jobsharing,
shift-working, working
from home, flexi-time, school
term-time working and annualised
hours.
Pleuralplaqueclaimsdelayed
Earlier this year the Scottish Parliament
passed legislation designed to
re-introduce compensation claims
for pleural plaques and other
asbestos-related conditions which
did not cause symptoms. Unfortunately
the insurance industry has
raised a challenge to the new law in
the Court of Session in Edinburgh.
There is no immediate prospect of
a decision by the courts and the
losing party may seek to appeal.
In the meantime, the situation is
unsatisfactory. The legislation
came into effect in early June. This
means that the fairly strict threeyear
time-bar period for raising
court proceedings is now running
once again with regard to these
claims. On the other hand, the
courts are not dealing with claims
and the insurers themselves are
refusing to investigate and handle
claims pre-litigation, pending the
outcome of the challenge.
This means that we and members
will need to investigate claims
(and if necessary raise protective
court proceedings) when there is
unfortunately no guarantee that
they will ultimately be successful.
Holidaypayruling
Many members will be aware that a
large number of employment tribunal
claims must be lodged within
three months of the date when the
claim arose or these claims will be
time-barred. For some time there
has been doubt as to whether a
sequence of non-payment of holiday
pay could be rolled into one
claim (under the Working Time
Regulations 1998) and raised
within three months of the date of
the last non-payment of holiday
pay, or whether the previous nonpayments
in the sequence would be
time-barred.
In an important recent decision
in the case of Stringer & Others –v–
HMRC which will assist members
in securing their holiday pay, the
House of Lords held that a sequence
of non-payments of holiday pay
could be grouped together and one
claim only raised in an employment
tribunal as long as it was
raised within three months of the
date on which the last non-payment
of holiday pay was due to
have been paid.
● Dallas McMillan provides UCATT
members and families in Scotland with
a wide range of legal services. Contact
Gordon Bell or colleagues David McElroy
and Michael McNulty on freephone
0800-652 7646.
● See [www.dallasmcmillan.co.uk].