In the case of Hein v Albert Holzkamm GmbH a construction worker in Germany was working under a collective agreement which allowed for holiday pay to be calculated on the basis of a 13-week average pay (a long-standing provision of German law). After a 26-week lay-off, his holiday pay was calculated under German law on the basis of average pay, excluding overtime, meaning that it was lower than his normal pay. The CJEU held that this breached EU law in respect of pay for the 4 weeks' paid leave guaranteed by EU law. Therefore, German legislation allowing for collective agreements to take into account reductions in earnings due to short-time working for calculating holiday pay was incompatible with EU law. In respect of overtime, where it is exceptional and unforeseeable, it did not have to be taken into account in calculating minimum holiday pay. The CJEU also held that the right to accrue annual leave arises from actual work, so annual leave did not accrue during periods when no work was done (paras. 26-30). The CJEU also held that, despite many years of German case law allowing this to be done, its ruling could not be limited to avoid retrospective effect due to any legitimate expectation of employers of legal certainty, as there would not be serious economic repercussions from the judgment.
With thanks to Daniel Barnett's Employment Law Bulletin for its coverage of this case.
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Right to a statement of employment particulars 8 January 2019
Does an employee have a right to a statement of employment particulars when employed for less than 2 months?
Yes, if they have worked continuously for at least 1 month, held the EAT in Stefanko and others v Maritime Hotel Ltd.
The Claimants were all employed as waiting staff by the Maritime Hotel. They all had relatively short periods of employment of a few months. One Claimant, Ms Woronowicz, was only employed for 6 weeks. She succeeded in a claim for automatically unfair dismissal. She had complained of a failure to provide either a payslip or statement of employment particulars. The tribunal declined to increase that award under section 38 Employment Act 2002 , as Ms Woronowicz did not have 2 months' continuous employment; 2 months being the amount of time given by section 1(2) Employment Rights Act 1996 for an employer to provide a statement. On appeal the EAT decided that was incorrect.
Section 2(6) ERA says that the right to a statement of employment particulars exists even if a person's employment ends before the 2 months are up. Ms Woronowicz was therefore entitled to one, and an increased award.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
CIPP comment From 6 April 2020 (in England, Wales and Scotland) all workers will have a day one right to a written statement of particulars of employment. The Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations 2018 will bring this change into effect. These regulations also bring into effect changes where a worker has been employed by their employer for at least 52 weeks, the reference period will be increased from 12 weeks to 52 weeks. And where a worker has been employed by their employer for less than 52 weeks, the reference period will be the number of weeks for which the worker has been employed.
This is just one of the areas of change under the recently published Good Work Plan which details major reforms to workplace rights, building on the work of the Taylor Review of Modern Working Practices.
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The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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