Policy News Journal - 2015-16

 Men too embarrassed to request Shared Parental Leave  Is the workplace cuppa going the way of the bowler hat?  Nine out of ten employers see the benefit of corporate volunteering  'Revolution' in flexible working under way  Is an unsigned contract of employment enforceable?

Holiday pay when part time workers increase hours 13 November 2015

If a part-time worker increases their hours, is the employer obliged to recalculate her entitlement to annual leave retrospectively, even taking into account annual leave already accrued and taken?

No, held the ECJ in Greenfield v The Care Bureau Ltd .

The Claimant's working hours and days varied from week to week. She took 7 days' paid leave at a time when she was working one day a week (the equivalent of 7 weeks' leave). Her employer said this exhausted her entitlement. She then increased her hours to 12 days on, 2 days off each fortnight. After her employment ended, she claimed a payment for accrued but untaken annual leave.

The employment tribunal upheld her claim, but following an appeal and application for reconsideration, referred the matter to the European Court of Justice (ECJ).

The ECJ held that annual leave must be calculated in accordance with a worker's contractual working pattern, and the hours, days (and fractions thereof) actually worked. However, the taking of leave accumulated in one period has no connection to the working hours in the later period when leave is actually taken. There was already authority that a reduction from full-time to part-time working should lead to no reduction in the amount of leave a worker has already accumulated ( Zentralbetriebsrat der Landeskrankenhauser Tirols , 2010). An employer must therefore distinguish between different periods of different working patterns and calculate the leave that accumulates in each period separately, taking the same approach whether this is during employment, or after it has ended.

Thank you to Daniel Barnett’s employment law bulletin for the update.

CIPP comment The CIPP run a practical half day course which includes an overview of the legal framework that governs holiday pay and entitlement, as well as worked exercises to explore the calculations thoroughly. The course covers various issues relating to how part-time workers’ entitlement and pay should be handled, including the type of situation outlined in this case. Visit our website for full details.

Employers must include commission in holiday pay calculation 23 February 2016

In the long running British Gas v Lock case, the Employment Appeal Tribunal has dismissed the appeal from British Gas, however we must await the outcome of further cases before we know exactly how to include commission when calculating holiday pay. The Employment Appeal Tribunal (EAT) dismissed the appeal made by British Gas against Lock and held that there is no difference in principle between payment for non-guaranteed overtime and payment in respect of commission so far as annual leave pay is concerned. The non-guaranteed overtime relates to the case of Bear Scotland v Fulton where in October 2014 the EAT ruled that EU law can be read across into the Employment Rights Act 1996 so as to require employers to take into account non-guaranteed overtime payments when calculating pay for the basic four week holiday entitlement under regulation 13 of the Working Time Regulations 1998. Background Mr Lock was at the material time employed by British Gas as a salesman. His remuneration package included a basic salary plus commission which was based on the number and type of contracts he persuaded customers to enter into; in other words it was results-based commission and did not depend on how much work was done.

CIPP Policy News Journal

25/04/2016, Page 126 of 453

Made with FlippingBook - Online magazine maker