after the end of the relevant leave year (effectively giving workers over two years to use a year's leave entitlement). However, the CJEU also appear to endorse the A-G’s opinion that a carry-over period of only six months would be insufficient in such circumstances and, indeed, suggest that any carry-over period of less than 15 months may contravene the Directive. "This ruling still leaves us with some uncertainty in the UK however, because the Working Time Regulations (the UK Regulations which implement the Directive) expressly state that annual leave cannot be carried forward from one year to the next. Consequently, there has been much debate about whether the Regulations can be interpreted consistently with the Directive. This is a timely decision, therefore, as the Government is currently consulting over potential amendments to the UK Working Time Regulations to reflect the existing European case law on the topic of holidays and sickness. This decision of the European Court is now likely to influence the shape of those amendments.” 23 November 2011 Should a part-timer excluded from a pension scheme by indirect discrimination get damages if, when permitted, she does not choose to join it? No, says the Court of Appeal, in Copple & Others v Littlewoods Plc & others . Daniel Barnett’s Employment Law Bulletin reports: The employer's pension scheme was historically closed to part-timers. Having opened it up to female part-timers, the employer did not permit retrospective pension rights for the 'closed period' to those who hadn't joined within three months of it opening to them. The employer applied the 'opt-out' principle; i.e. if you did not join the scheme when you could, then you would not have joined earlier anyway, so no loss means no remedy. The Claimants challenged the 'opt-out' principle as incompatible with EU law, by not providing an effective remedy for this discrimination. The Court of Appeal held that the 'opt-out' principle was compatible with EU law; there was no scope for the 'penal' remedy sought for indirect discrimination. However, the Court of Appeal held that part-timers excluded from the scheme who then joined should be entitled to retrospective pension rights for the closed period and an interim period when the scheme was open to them but before they decided to join, provided that the reason they deferred joining was down to their exclusion in the first place, ensuring that the remedy would fully correct the consequences of discrimination. The length of this "relatively short period" is a question of fact. The judgment also gave guidance on the approach to the question of when an excluded employee would have joined a scheme if hypothetically permitted, the test being on the balance of probabilities. PART-TIME PENSION CLAIMS
STRINGFELLOWS - ARE DANCERS EMPLOYEES?
28 November 2011 A judge has ruled that a lap dancer can appeal an Employment Tribunal decision to establish whether she was “employed” by the club. This legal challenge will be of interest to all businesses using self employed consultants and workers. HR Magazine reports:
CIPP Policy News Journal
09/10/2012, Page 56 of 234
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