Case report list

The Advocate General has handed down his opinion in Stringer and Others v Her Majesty's Revenue and Customs C-520/06 where he considered whether article 7 of the EC Working Time Directive means that workers must receive minimum annual paid leave of four weeks during a long period of incapacity for work. The Advocate General has said that a worker can accrue paid annual leave while off sick but cannot take that paid annual leave during their sick leave. He added that on termination of employment workers are entitled to compensation for annual leave which has accrued but has not been taken due to illness.

In Bleuse v MBT Transport Limited and Tiefenbacher (debarred) UKEAT/0339/07 and UKEAT/0632/06 the EAT considered claims brought by a German national who lived in Germany, was employed by a company registered in the UK and who worked throughout Europe, but never in the UK. The EAT held that the tribunal had erred when it held that it had been reasonably practicable for a claim for breach of contract to have been presented within the three-month time limit and remitted the question to be considered by a fresh tribunal. The EAT also held that, if the fresh tribunal held that the employee's claims had been presented in time, it would not have jurisdiction to hear claims for unfair dismissal or unlawful deductions from wages (which were purely domestic rights), but would have jurisdiction to hear the employee's claim for unpaid holiday pay. This was because the Working Time Regulations 1998 gives effect to a right derived from EU law and, where English law was either the proper law of the contract or where it provided the mandatory rules appliable to the employment relationship by virtue of the Rome Convention, an English court properly exercising jurisdiction had to construe the relevant English statute, if possible, in a way which was compatible with the EU right conferred.

The EAT held in Vernon v Event Management Catering Ltd that holiday during which a casual employee received rolled-up holiday pay did not break their period of continuous employment. Cases of this typle are unlikely to arise again, in view of the ECJ's finding that rolled-up holiday pay is not lawful. However, it does mean that casual employees could preserve continuity by taking a day's holiday in any week during which they are not given work.

The Court of Appeal in Commissioners of Inland Revenue v Ainsworth has overturned the EAT's decisions in Kigass Aero Components v Brown and List Design v Douglas. Consequently, paid annual leave under the Working Time Regulations 1998 cannot be taken while a worker is on sick leave, and neither can a worker claim statutory holiday pay as a deduction from wages under ERA 1996.

In Sumsion v BBC Scotland the EAT held that an employer could require a worker to take his annual leave in single days every other Saturday, in circumstances where his contract required him to be available for work six days per week (including Saturdays). The arrangement was not a sham, and there is no presumption that leave under the WTR should only be given on a Saturday (or Sunday) where the worker would otherwise have been required to work on that day.

On 13 December 2006 the House of Lords decided the terms of the questions to be referred to the ECJ in the case of HM Revenue & Customs v Stringer and others (formerly Commissioners of Inland Revenue v Ainsworth and others). The House of Lords suggested to the ECJ that it would be appropriate to consider the questions together with an existing reference from a German court covering similar issues. All cases which are currently stayed pending the House of Lords decision will now have to await the ruling of the ECJ.

In Commission v United Kingdom, the ECJ held that the UK Government failed to adequately implement the Working Time Directive in relation to the exemption for "partly unmeasured working time" and minimum daily and weekly rest periods. Read more.

The EAT upheld a tribunal's finding that workers whose pay included a fixed attendance bonus (which was payable if the worker worked his full contracted hours in a given week) plus a productivity bonus (which was paid if the worker's team exceeded its targets) were workers whose pay varied with the amount of work done, for the purposes of section 221 of ERA 1996. Read more.

The Court of Appeal held that it was not a breach of the Working Time Regulations for the employees' holiday pay to include only a proportion of the average shift pay. Read more.

The Advocate General has given her opinion that the UK Government failed to adequately implement the Working Time Directive in relation to the exemption for "partly unmeasured working time" and minimum daily and weekly rest periods. Read more.

The EAT held that a resident manager of a care home was working during the whole period that she was on-call for the purposes of the Working Time Regulations 1998 (WTR). Read more.

The ECJ held in Dellas and others that where national law sets more favourable thresholds for working time than those set under the Working Time Directive, in particular for maximum weekly working time, the relevant thresholds for ascertaining whether the protective rules laid down by the directive are complied with are exclusively those set out in the directive (and not those established under national law).

In Bacica v Muir the EAT held that the fact that a painter and decorator was required to perform personal service was not conclusive of his worker status. In determining whether an individual is a worker, an employment tribunal should also have regard to whether the person for whom the work is performed is a client or customer of a business carried on by that individual. If this is the case, the individual is not a worker and consequently has no entitlement to paid holiday under the Working Time Regulations 1998.

In Hone v Six Continents Retail Limited the Court of Appeal upheld a county court's finding that a pub landlord's psychiatric injury had been caused by working excessive hours, and that the injury had been reasonably forseeable.

The EAT in Skiggs v South West Trains Ltd upheld a tribunal's finding that a meeting between a manager and an employee, during which the manager inquired into another employee's grievance, was not a disciplinary hearing to which the employee had a right to be accompanied under section 10 of ERelA 1999, despite the fact that the matters discussed could lead to later disciplinary proceedings. It also held that a tribunal can award compensation to a union official for being deprived of the right to time off work for union duties pursuant to section 168 of TULRCA, even though no actual financial or other special losses have been proved.