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Holiday: to roll over, or not to roll over – that is the question

The issue of holiday pay has been back in the ECJ, with the Court considering the case of King v The Sash Window Workshop Ltd and another.

In that case, the issue had arisen as to whether Mr King, a worker who had been mistakenly classified as self-employed, should be able to carry over holiday that he had been prevented from taking as a result of the misclassification.

The EAT held that a worker who is unable or unwilling to take holiday due to reasons beyond their control (extending beyond sickness) should be allowed to carry it over to the next leave year. The question of whether Mr King was in fact prevented from taking his leave was referred back to the Employment Tribunal.

The Court of Appeal made reference to the ECJ to answer the key issues in the case, specifically:

  1. Under the Working Time Regulations, does an individual have to take unpaid leave before being able to prove that they are entitled to pay for this?
  2. Where the worker doesn’t take leave they are entitled to, can the leave be carried over when the worker is prevented from exercising their right?
  3. If the leave does carry over, is this indefinite or for a limited period as in sickness cases?

The hearing took place on Wednesday and the judgment will be hotly anticipated, for a number of reasons. It has the potential to extend the right to carry over beyond incidences of sick leave. It is also interesting on its facts, in the context of the rise of the gig economy and the question of employment status.

One interesting point made by the European Commission was that, as the Working Time Directive is a health and safety measure, the burden of ensuring compliance should fall on the employer. As such, there is no burden on the employee to actually request carry-over. For updates on the decision, watch this space.

Holiday: to roll over, or not to roll over – that is the question

Health and safety sentences: update on the sentencing guidelines one year on

Employers have a general duty to ensure the safety of their employees under section 2 of the Health and Safety at Work Act 1974. On 1 February 2016, the new sentencing guidelines for health and safety offences came into force. The guidelines direct the courts to consider the sentencing of offending organisations using a step-by-step approach. This approach comprises nine categories, including the level of culpability, the seriousness of the harm at risk and whether anyone was actually harmed. The guidelines also require an assessment of turnover to set a starting point for a fine that is “intended to bring the message home to the directors and shareholders of offending organisations”.

Merlin Attractions Operations Limited (Alton Towers) was one of the first large organisations to receive a conviction and sentence under the new guidelines. The court fined it £5 million, following an accident which injured 16 people and resulted in life-changing injuries for two girls who needed leg amputations. Alton Towers admitted to breaching the Health and Safety at Work Act 1974 and it will have to pay the £5 million in addition to any individual compensation payments to the victims of the accident. Three other large organisations have received fines of between £1.8 million and £2 million for breaches of their health and safety duty under the new regime.

Last year Wilko Retail Limited (Wilko) received a fine of £200,000 in relation to a workplace fatality. More recently, in January 2017, Wilko received a fine of £2.2 million as a result of an incorrectly loaded roll cage toppling onto a Wilko employee, causing spinal injuries and paralysis. At £1.4 billion, Wilko’s turnover is much higher than the £50 million threshold for “large” companies under the sentencing guidelines. Therefore, the judge proceeded in delivering a sentence that was proportionate to this turnover, and one which would ensure that the fine would have a real impact on the company and act as a warning to other organisations. This recent judgment demonstrates that judges’ discretion to go beyond the guidelines for very large organisations is an important element of the new guidelines. It shows that breaches of health and safety can result in a much higher sentence than would previously have been anticipated, let alone issued.

It is important that executive boards and senior management teams understand the steps they can take in advance of a potential incident to ensure that any harm is avoided. In particular, employers should follow the steps below to ensure they minimise the risk of health and safety breaches, and avoid prosecution for these breaches altogether.

  • Identify and control health and safety risks
  • Ensure that systems are in place to control the risks identified
  • Implement, and adhere to, the systems that have been set up
  • Provide proper training to staff (both health and safety, and for use of specific equipment and machinery used in the workplace)
  • Regularly review risk assessments

Employers should also ensure there are clear health and safety policies in place for all staff to refer to, and a clear reporting line for employees to raise any concerns over health and safety in the workplace. The recent Wilko case acts as a warning to employers that breaches of the general duty to ensure the safety of their employees could have a severe impact, both for the welfare of their employees and financially for the organisation. Employers should also be reminded that the potential effect of any criminal proceedings and/or convictions could result in the imprisonment of individuals at the organisation if the individual’s consent, connivance or neglect has led to a relevant breach of health and safety.

Health and safety sentences: update on the sentencing guidelines one year on