taking annual leave. Mr King appealed to the Court of Appeal who referred the case to the European Court of Justice. The
AND BREATHE… Inhale the pile next to the washing machine. You’ll feel better.
PAID HOLIDAY – IT’S WORTH IT The ECJ orders 13 years of backdated holiday pay.
THE ROAR OF THE CROWD We’re getting our performance heads on.
Your weekly bulletin of wit & wonder in the world of…
Wg Employment Issue 584/January 2018 Well, we’ve got past Blue Monday. The day when the full financial horror of Christmas hit and pay day was still so far away is now three days past. But if you’re still battling Blue Third Week of January you could do worse than go and sniff dirty laundry. Especially if your significant other’s sweaty top is at the top of the pile. According to an online report by The Hook this week, scientists at the University of British Columbia got people to sniff clothes – some clean, some dirty and some worn by their partner. While sniffing, the subjects were wired up to stress monitors. Turns out that smelling the stinky clothes of complete strangers makes us really quite tense. But inhaling the scent of our partner makes us relaxed and happy. Scientists are now recommending we wrap ourselves in our partners’ Scientists are now recommending we wrap ourselves in our partner’s clothes when we’re stressed. Of course we’ve all shrugged into the other clothes when we’re stressed. half’s hoodie from time to time. Trouble is, a lot of stress happens at work and, I don’t know, a moth-eaten fleece or stained vest atop your smart trousers and shiny shoes probably isn’t going to work while presenting to the board. Or while taking part in a dawn raid with the firearms division. Maybe we should all keep a partner’s sweaty top in our work bag and just duck down and inhale deeply every so often. A bit like a Vick’s inhaler for the soul… In fact there’s a gap in the market! Bespoke nasal inhalers filled with a stick of your loved one’s distilled sweat, for discreet use at any time. Somebody get me Dragon’s Den phone number!
If you leave me now… And speaking of relaxation brings us to the stressful case of The Sash Window Workshop Ltd and another v King… Mr King worked for The Sash Window Workshop Ltd (SWW) as a commission-only salesman for 13 years. SWW classified him as selfemployed, therefore he did not receive holiday pay when on annual leave. On termination of his employment at 65, Mr King brought a claim for unlawful deductions of wages covering his 13 year career at SWW and a claim for age discrimination. Mr King argued that he had not taken his full annual leave entitlement each year because it would have been unpaid. The Employment Tribunal held that Mr King was a worker under the Working Time Regulations and awarded him holiday pay in respect of:
Leave accrued in the final leave year but untaken at the date of termination.
Leave requested and taken as unpaid leave in previous years, claimed as a series of unlawful deductions from wages.
Leave accrued but untaken in previous years.
The age discrimination claim was successful and not appealed. However, SWW appealed against the decision to award payment in respect of leave accrued but untaken in previous years. The first two points were no longer in dispute. The Employment Appeal Tribunal upheld the appeal on the grounds that Mr King had not been prevented by reasons beyond his control from taking annual leave. Mr King appealed to the Court of Appeal who referred the case to the European Court of Justice. The Advocate General of the ECJ supported Mr King's arguments, stating that employers must provide adequate facilities for workers to take paid annual leave. If a EVENT SEASON 2018 worker has not taken some or all of their leave entitlement because their employer refuses holiday pay, the worker is entitled to say they’ve THE WORLDtheir GO ROUND IN GEAR FOR GDPR beenEMPLOYEES prevented MAKE from exercising right to paid leave. If this isGETTING the case, the stleave is carried over until the worker has the opportunity to th Wednesday 7 March Wednesday 21 February exercise that right, or until termination. SEXUAL HARRASSMENT IN THE WORKPLACE June TBC
MENTAL HEALTH CHECK July TBC
PULLING A SICKIE September TBC
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the ECJ supported Mr King's arguments, stating that employers must provide adequate facilities for workers to take paid annual leave. If a worker has not taken some or all of their leave entitlement because their employer refuses holiday pay, the worker is entitled to say they’ve been prevented from exercising their right to paid leave. If this is the case, the leave is carried over until the worker has the opportunity to exercise that right, or until termination. The ECJ held that a worker must be able to carry over unused holiday where the employer does not put the worker in a position to exercise the right to take paid annual leave in the first place. The case is now back with the Court of Appeal to apply the ECJ ruling, which is due to be heard in 2018. The case is important for companies operating in the ‘gig economy’. Mr King’s success could encourage others to claim worker status. The ECJ decision will have significant implications for those whose status has been misclassified as self-employed rather than worker, increasing the already high stakes in the gig economy status cases currently in courts and tribunals.
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Employers could be liable to pay considerable amounts of money to workers on termination of employment, not only for unpaid holiday they have taken, but for holiday they have been discouraged from taking because it would have been unpaid. Even if employers start offering paid holiday going forward, liability for the past untaken holiday would remain, until termination of employment.
Overture & beginners There’s always a bit of a fizz in WG Towers when we put out the new programme of seminars and masterclasses. We may be lawyers but we like to put on a show! Regular attendees will know we always make it as fun as possible with games, props, quizzes and roleplay – to help you remember the important points. Sometimes we like to push the boundaries. But not too far. Here are some ideas for 2018 that we didn’t go with… 1. GIANT JENGA - symbolising the instability of staff-management relationships when the groundwork isn’t done. Abandoned over health & safety concerns. 2. WORKPLACE PREJUDICE ROLEPLAY - a free flowing insult workshop to get to the root of our issues. Abandoned over health, safety and likelihood of crying. 3. MUD SNORKELLING - team building exercise. Still on the table, actually. 4. STAFF ZODIAC SIGNS. How to manage those bl**dy Geminis. Rejected because Sarah’s a typical Capricorn. 5. TWISTER! Just… no. If you’re looking for a refresher on all things employment law, check out our free 2018 seminars here. Or if you’re looking for something a bit more in depth why not try our masterclasses charged at £95+VAT per person here.
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Contact the team Sarah Whitemore (Partner) – 02380 717462 Howard Robson (Partner) – 02380 717718 Lisa Joyce (Associate) – 02380 717447 Emma Kemp (Associate) – 02380 717486 Natalie Rawson (Solicitor) – 02380 717403 DISCLAIMER While every effort is made to ensure that the contents of these diaries are up -to-date and accurate, no warranty is given to that effect and Warnergoodman does not assume responsibility for their accuracy and correctness. The diaries are provided free of charge and for information purposes only. Readers are warned that the diaries are no substitute for legal advice given after consideration o f all material facts and circumstances by an experienced employment lawyer. Therefore, reliance should not be placed upon the legal points explained in these diaries or the commentary upon them.
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