Employment Highlights November 2018

Monthly highlights for November include a further judgement on whether somebody was a worker or self-employed, clarity on untaken annual leave – if it was required, and whether a comparator was treated less favourably.

Annual Leave

In November, the ECJ handed down judgement in two German cases regarding the right to a payment in lieu of untaken annual leave on termination, under Article 7 of the Working Time Directive (2003/88/EC) (WTD). It held that a worker does not automatically lose their accrued but untaken holiday entitlement at the end of the relevant reference period because they have failed to seek to take their holiday entitlement for that period. However, the WTD does permit the loss of accrued holiday entitlement if the employer can show that it enabled the worker to take the holiday before the end of the reference period (through the provision of sufficient information, for example). The ECJ also held that the right to paid annual leave under the EU Charter of Fundamental Rights is a directly enforceable right, including between private persons, and that national courts are required to interpret domestic legislation as far as possible in compliance with this Charter right.

Pensions

In a separate case, brought by a part-time judge, the ECJ held that where the accrual of pension entitlement extended over periods both before and after the deadline for transposition of the Part-time Workers Directive (97/81/EC), the calculation of those rights was governed by the provisions of that Directive for the whole period of employment, including with regard to the period before the Directive came into force. In another case this month, the ECJ held that the work performed by foster parents under contracts with a public authority does not fall within the scope of the WTD. Judgment is awaited in two employment tribunal decisions on the employment status of foster carers in the UK, and their entitlement to holiday pay.

Part time comparator

This month, the Court of Appeal held that a part-time member of British Airways cabin crew had been treated less favourably than her full-time comparator in relation to pay, remitting the question of whether the treatment was justified. The claimant was required to be available for work for 53.5% of the full-time comparator’s available days, but was only paid 50% of full pay. Also this month, we heard that The Sash Window Workshop Ltd and another v King settled on the day it was due to be heard by the Court of Appeal. The court had been due to decide whether the Working Time Regulations 1998 (SI 1998/1833) (WTR 1998) can be interpreted consistently with the ECJ ruling in this case to allow payment in lieu of untaken holiday to be claimed for an unlimited period where the worker had been discouraged from taking the leave because it would have been unpaid.

Worker or self employed

The EAT has confirmed that Addison Lee minicab drivers were workers under the Employment Rights Act 1996, the WTR 1998 and the National Minimum Wage Act 1998. Upholding an employment tribunal decision, the court found that there was not only an overarching contract, but that the drivers were also workers during periods when logged on to the company app.

Gender pay gap reporting

The Law Society of England and Wales published non-binding guidance on gender pay gap reporting, encouraging law firms to go beyond the statutory requirements. For example, it suggests that firms with less than 250 employees voluntarily publish their data and that publications should be accompanied by a robust narrative report. UK Visas and Immigration published details of the new in-country visa application system which launched on 2 November 2018. The new process aims to streamline the application experience, making it more accessible, speedy and secure. Also this month, the FCA published a new webpage displaying the findings from its review of the implementation of whistleblowing policies in retail and wholesale banks.

Other news

In other news, the Government Equalities Office (GEO) announced a change in its gender equality strategy. It will be shifting its focus from big business and women on boards towards more marginalised women. The GEO has also published its tailored review of the Equality and Human Rights Commission, which found that the public body is not meeting its potential and makes recommendations for its improvement. Finally, this month Acas published new research on the impact of the #MeToo movement on workplace culture.

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