The tribunal found less favourable treatment of a part-time worker due to the need to be available for work. It held the treatment was not justified as BA could have increased pay to 53.5% of the full-time worker.
The EAT allowed BA's appeal on justification, finding that statistical analysis of the impact of being available needed to be considered before deciding whether an increase in pay would have been out of proportion. BA appealed the finding of less favourable treatment to the Court of Appeal. The Court of Appeal rejected the appeal, holding that a requirement to be available for 53.5% of the number of days in return for 50% of the pay was prima facie less favourable treatment of a part-time worker. The case has now been remitted to the tribunal to consider the justification defence and, if that is rejected, remedy. Bean LJ said "it would be a very surprising conclusion" to award compensation of 3.5% salary for the period of loss claimed if the tribunal accepted Mrs Pinaud worked fewer days than her comparator.
The outcome of this case will determine 628 similar stayed cabin crew claims against BA.
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Holiday pay 9 November 2018
The European Court of Justice has held that the heir of a worker who dies while in an employment relationship with a public or private employer has a right to financial compensation in lieu of the worker’s untaken paid annual leave.
In the case Wuppertal v Bauer and Willmeroth Broßonn the European Court of Justice (CJEU) held that the Working Time Directive and the Charter of Fundamental Rights and Freedoms, grants that heir the right to financial compensation.
It also held that the relevant EU laws had vertical direct effect, so that incompatible national laws would be disapplied in a dispute between a public employer and an individual.
However, Article 7 of the Working Time Directive did not have horizontal direct effect so as to disapply incompatible national law in a dispute between an individual and a private employer. That can be contrasted with Article 31(2) of the Charter, which did have horizontal direct effect so as to disapply incompatible national law in a dispute between an individual and a private employer. The Article reflected the essential principle of EU social law of the right to paid annual leave.
With thanks to Daniel Barnett's Employment Law Bulletin for its coverage of this case.
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Holiday Pay – lost leave? 12 November 2018
The Court of European Justice has held that if a worker doesn't apply for the minimum annual leave due under EU law during a leave year, the right to that leave is not lost at the end of the year.
Unless the employer diligently gives the worker the opportunity to take it, then the leave is not lost, held the CJEU in the case of Max-Planck-Gesellschaft v Shimizu.
With thanks to Daniel Barnett's Employment Law Bulletin for its summary of the case.
Mr Shimizu worked at the Max Planck Institute, a private scientific support institution in Germany, until 2013. He brought a claim for unpaid holiday from 2011 and 2012. Under German law, he lost the right to carry over untaken leave from one year to the next. The German Federal Labour Court referred two questions arising to the CJEU.
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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