Employment Bulletin – August 2016

Employee on sick leave can carry over holiday entitlement

The European Court of Justice (ECJ) has confirmed that an employee who is unable to take annual leave because of sickness can carry over the entitlement to a later date.

The case involved a teacher in Poland who was convalescing from an illness and unable to take her annual leave. When she later came to claim it, her school said that it had been used up during her sick leave.

The issue was referred to the ECJ, which ruled in favour of the teacher. It held that four weeks' annual leave was a fundamental right under EU law and a worker continues to accrue holiday entitlement while on sick leave.

The court differentiated between annual holiday entitlement as being for rest and relaxation, while sick leave was strictly for recovery from illness. The distinction should not be blurred, and if annual leave coincides with a period when an employee is off ill, then it should be rescheduled.

It made no difference whether or not the holiday period had already been scheduled prior to illness.

Director not liable for company's failure to insure employee

The Supreme Court has ruled that a director could not be held personally liable for his company's failure to provide adequate insurance for its employees.

The case involved a director who was responsible for the day-to-day operation of the company. In June 2006, an employee suffered an injury while working with an electric circular saw.

The company's insurance excluded claims arising from the use of woodworking machinery powered by electricity. It therefore excluded any claim arising out of the employee's accident.

The company's failure to have in place appropriate insurance was a breach of its obligations under the Employers' Liability (Compulsory Insurance) Act 1969 s.1 (1).

It went into liquidation in 2009 and so the employee sought to hold the director personably liable in damages for the failure to provide adequate insurance cover. The question was whether civil liability attached to the director for that failure. The case went all the way to the Supreme Court, which ruled in favour of the director. It held that the law did not impose a duty to insure on a director or other officer as such, let alone any civil liability for failure to do so. The duty rested on the corporate employer.

Doctor wins appeal against being dismissed in her absence

A doctor has won her appeal against being dismissed at a disciplinary hearing that she was unable to attend.

The case involved a doctor who had been suspended from clinical practice over performance and safety concerns. The written terms of her suspension stated that she could not work as a doctor for any other NHS trust or organisation without the permission of her employer.

She breached those terms by working for another NHS trust during her suspension. At an investigatory meeting the doctor stated that she had misunderstood the terms of the suspension letter.

A disciplinary hearing was convened, but the doctor was abroad and sought an adjournment. The employer initially agreed, but then changed its mind and proceeded with the hearing in her absence. She was dismissed for misconduct.

The Employment Tribunal later concluded that there was little that she could have said to excuse her conduct, and held that the dismissal was fair.

The Employment Appeal Tribunal has now overturned that decision. It held that the doctor had not admitted to working for another trust dishonestly or knowing that she was in breach of the suspension.

Since an important issue was the doctor's state of mind, proper consideration should have been given to why the employer thought the doctor's presence at the hearing would be futile and whether its actions were reasonable.

The tribunal judge had erred in law in his approach to whether the employer had adopted a fair procedure. The case was therefore remitted to a freshly constituted employment tribunal.

Part-time judges win dispute over less favourable treatment

Part-time judges have won their claim that they were treated less favourably than their full-time colleagues.

The case involved judges employed by the Ministry of Justice (MoJ) in the property chamber of the First Tier Tribunal. They claimed they were treated less favourably than full-time judges because their fees didn't fully reflect the time spent writing up their judgments.

The Employment Tribunal ruled in their favour. It found that in order to remove the less favourable treatment, they should receive an additional payment of two-thirds of the daily fee for each day's sitting.

That meant that if a judge heard a case over three days, he would be paid for two further days to cover judgment writing.

The MoJ appealed on the basis that the two-thirds rate was perverse because it over-compensated judges for multi-day hearings, and the rate should be tapered or capped for longer hearings;

However, the Court of Appeal upheld the decision. It said the MoJ had not produced any evidence to show there was anything wrong with the way the employment judge had assessed the evidence put before him and there was nothing to suggest he had reached a perverse decision that needed to be overturned.