Issue 6 - 28th March 2006

Tuesday 28 March 2006

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Court Cases

Working time

Robinson-Steele v R. D. Retail Services Ltd (C-131/04) /Clarke v Frank Staddon Ltd(C-257/04) /Caulfield & Ors v Hanson Clay Products Ltd (formerly Marshalls Clay Products Ltd)

The European Court of Justice has ruled that 'rolled up' holiday pay paid as part of a worker's hourly remuneration breaches the provision of the Working Time directive.

Holiday pay required by Article 7(1) of the directive is intended to enable the worker to take leave. The term 'paid annual leave' in that provision means that remuneration must be maintained during the leave. In other words, workers must receive their normal remuneration for that period of rest. The directive therefore precludes the payment for minimum annual leave from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave.

However any money which is paid in advance, and is truly additional to that paid for work done, can be set off against the amount which should be paid during the period of holiday if the payments are made transparently and comprehensibly. The burden of proof in that respect is on the employer. Click here for further information.

Statutory grievance procedures

Canary Wharf Management v Edebi UKEAT/0708/05

The EAT held that a letter complaining about working conditions was a generalised complaint about the adverse consequences to health of the conduct of the employer and did not raise an issue under the Disability Discrimination Act. It was therefore not a grievance letter for the purpose of the statutory procedures. Click here for further information.

Statutory disciplinary procedures

Silman v ICTS (UK) LtdUKEAT/0630/05

Where allegations of misconduct change during the course of disciplinary hearings, it is not always necessary to go back to step one of the disciplinary procedures. The EAT's view was that often in the course of a disciplinary hearing evidence might emerge identifying potentially disciplinary conduct which is merely a variation of the original allegations. To continue without restarting the process is not a breach of the rules. However if the employer wishes to deal with a quite distinct act of misconduct which has emerged during the disciplinary or investigative process it is necessary in order to comply with the procedures to send a fresh statement in writing. Click here for further information.

Costs

British School of Motoring v Fowler UKEAT/0059/06/ZT

The Respondent failed to enter a response in time. The Tribunal gave a direction that since no response had been received the Respondent could take no part in the proceedings. Subsequent correspondence with the Tribunal was taken as an application to review this direction. The Tribunal found the Respondent's explanation for failing to lodge in time implausible. The Respondent appealed. The appeal was allowed on the basis that the Respondent should have been allowed to comment on the Claimant?s objection to an extension of time for lodging the Response. The guidance given inMoroak v Cromie [2005] IRLR 535 applied. However as the failure to enter a response is was fault of the Respondent and/or his advisors, the costs associated with an appeal would be paid by the Respondent. Click here for further information.

Codes of practice

Race Discrimination

The revised Code of Practice on Racial Equality in Employment issued by the Commission for Racial Equality will come into effect on 6 April 2006.

The revised Code replaces the Code of Practice for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment, which came into force on 1April 1984.

The previous Code will continue to apply in the case of proceedings relating to any alleged act of unlawful discrimination committed before 6 April 2006.

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