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Expansion of the meaning of working time

For many employers, the concept of “working time” can be difficult to pin down. In particular, the question as to whether time spent “on call” can count as working time has been the subject of various European case law decisions over the last decade.

Working time is defined in the Working Time Directive (WTD) as any period during which a worker is carrying out his duties and is at his employer’s disposal.

Historically, when considering this issue the courts have tended to focus on the worker’s location during periods of time spent on call. However, in the recent Belgian case of Ville de Nivelles v. Matzak, the ECJ appears to be moving away from that line of thinking.

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Expansion of the meaning of working time

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity

Check the holiday calendar!

Failure to correctly plan pilots' holidays will result in Ryanair cancelling hundreds of flights over the next six weeks.
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Check the holiday calendar!

We’re all going on a summer holiday…if the boss allows it!

 

The holiday season is upon us and workers have dreams of lying on beaches and splashing in the sea. As an employer you might have other ideas. You might need your staff in the workplace. This has been the case for those in the financial sector. Some banks have put measures in place to ensure there are enough staff to deal with enquiries and issues arising from the Brexit vote.

Can employers restrict the taking of holidays?

Under the Working Time Regulations 1998 (WTR), either the employer or worker can give notice of taking statutory holiday. A written agreement can vary or exclude these provisions.

Under the WTR, the notice a worker needs to give must be at least twice the period of leave that they are requesting. This means if the worker wants to take five days’ leave, they must give at least 10 calendar days’ notice.

An employer may refuse a worker’s holiday request by serving a counter-notice. The employer must give the notice at least as many calendar days before the date on which the leave is due to start as the number of days which the employer is refusing. This means if the worker has requested six days’ leave and the employer wishes to refuse five days of the request, it must give notice at least five calendar days before the date on which the leave was due to start.

Employers need to ensure that they are not restricting a worker from taking their entitlement due under the Working Time Directive (WTD). This amounts to four weeks’ minimum entitlement (the WTR provide for 5.6 weeks’ leave in total). Except in some limited circumstances (such as where long-term sick leave or family-related leave is taken), workers may only take WTD leave in the leave year to which it relates, or else it is lost. A worker may, subject to their terms and conditions, be able to carry over any additional WTR leave or other leave accrued under their contract, to the next leave year.

While major UK banks and foreign banks have not put in place outright bans on taking annual leave, they have admitted to putting in place “appropriate measures” to ensure they have sufficient numbers of staff working. Having staffing resources in place will be a consideration for other sectors too.

We’re all going on a summer holiday…if the boss allows it!

Insight: Lock v. British Gas 2.0 – employers must include commission in holiday pay

What triggered the case?

Mr Lock was employed by British Gas as a salesman. His remuneration package included a basic salary plus commission, which was calculated based on the number and type of contracts he secured from customers. When Mr Lock went on holiday, British Gas would only pay him basic pay, which was significantly less than his usual salary.

Mr Lock issued a claim against British Gas in 2012 and claimed that his holiday pay should include a sum representing the commission he would normally earn whilst at work.

What is the law?

The European Working Time Directive (EUD) provides that workers must have the right to at least four weeks’ paid annual leave. However, it does not specify how holiday pay should be calculated. In the UK, the Working Time Regulations 1998 (WTR) implement the EUD and provide that holiday pay, for a worker who works “normal working hours”, is calculated on basic salary only.

Despite the clear wording of the WTR:

1. in the case of Bear Scotland, the EAT held that the WTR can and should be interpreted to conform with the EUD, and that holiday pay must reflect a worker’s “normal remuneration”, which includes non-guaranteed overtime; and

2. on referral, the ECJ ruled that holiday pay under the EUD includes commission, to ensure workers are not discouraged from taking annual leave.

In Lock, the employment tribunal (ET) adopted the approach taken by the EAT in Bear Scotland and held that holiday pay includes commission . The ET also held that it was necessary to read the WTR in a way that conforms with EU law, even if this requires the tribunal to imply words into the WTR.

British Gas appealed the ET’s decision.

Read the full article here.

Insight: Lock v. British Gas 2.0 – employers must include commission in holiday pay