Agreement on Holiday Dates overrides Statutory Rules

 

In Industry & Commerce Maintenance v Briffa, Mr Briffa was given one week’s notice of termination.  The letter stated that Mr Briffa was not, under the terms of his contract required to work his notice and that he should take any unused holiday in his last week for which he would be paid.

 

 

Mr Briffa’s acceptance of the terms and conditions of his employment was evidenced by his signature on the contract dated 5 June 2005.  Mr Briffa was also made aware of a variation to a contractual term requiring individuals when they are not required to work, upon receiving a notice, to regard themselves as being on holiday during the notice period. This variation was posted to all employees on 4 July 2005.

 

 

Once Mr Briffa’s employment terminated on 17 August 2007, he submitted a claim at the Employment Tribunal for outstanding holiday pay.  The Respondent resisted the claim, relying on the contractual variation. The employment tribunal accepted that whilst the variation was a term of the contract, it fell foul of Regulation 15 of the Working Time Regulations 1998 (WTR) and concluded that Mr Briffa was entitled to four days outstanding pay. The Respondents appealed.

 

 

The EAT upheld the appeal.  The EAT found that the tribunal had failed to recognise that Regulation 15 could be varied or dis-applied by a relevant agreement.  The EAT found that since the variation was in writing it was held to be legally enforceable and therefore was a relevant agreement within the meaning of Regulation 2.  Consequently, the Respondent was not obligated to give notice in the manner prescribed under Regulation 15.

 

 

In conclusion, the EAT confirmed that the policy behind the WTR is to “ensure that workers take sufficient holiday with pay”. In this case it was decided that “the purpose behind the Regulations, implementing the Working Time Directive had been fulfilled in this case”. 
 

Age Discrimination – Staying Compulsory Retirement Cases

The Court of Appeal has confirmed in the case of Johns v Solent that cases which raise the same issue as the Heyday case in the ECJ should be stayed (not struck out).

This means that where Claimant brings a claim of age discrimination in respect of a retirement dismissal at age 65, the case should be stayed notwithstanding that regulation 30 of the Age Regulations appears to make such a claim impossible.

In the Heyday appeal, Age Concern is challenging the legitimacy of regulation 30 ( where the dismissal of a person is not unlawful at or over the age of 65 where the reason for the dismissal is retirement), arguing that it is incompatible with the Equal Treatment Framework Directive. If it is indeed found to be incompatible, then the government will need to objectively justify a mandatory retirement age of 65.

Misrepresentation necessary for doctrine of illegality to apply

In Enfield Technical Services Ltd v Payne; BF Components Ltd v Grace, the Court of Appeal found that two employees who had wrongly been characterised as self-employed were not precluded from claiming unfair dismissal by the doctrine of illegality. In so holding, the Court endorsed the EAT’s view that ‘there must be some form of misrepresentation, some attempt to conceal the true facts of the relationship, before the contract is rendered illegal for the purpose of a doctrine rooted in public policy’.

EAT doubts correctness of ruling on expatriate employees

The EAT in Duncombe and ors v Department for Education and Skills has held that employees who worked abroad were entitled to bring claims under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 SI 2002/2034 in an employment tribunal. But the EAT expressed strong reservations as to the correctness of earlier authority by which it felt bound in reaching the conclusion that the 2002 Regulations could apply to employees working abroad.

Court of Appeal overturns EAT decision that workers were employed by an agency.

In Consistent Group Limited v Kalwak and ors, the Court of Appeal has rejected the EAT’s approval of a tribunal’s finding that there was a contract of employment between workers and an employment agency that purported to engage them as self-employed subcontractors. The employment judge’s decision was held to be ‘manifestly unsatisfactory’, as he had failed to provide sufficient reasons for the parties to be satisfied he had reached ‘a cogent answer’. As a result, the case was remitted to be re-heard before a differently constituted tribunal.