Wolferstans' Employment Law Newsletter
July 2006
Working Time Opt-Out
Ministers from the European Community have failed to reach agreement on changes to the Working Time Directive, and in particular with regard to the maximum working week. The United Kingdom currently has an opt-out from the 48 hour working week maximum which is controversial within the Community and France and Sweden in particular have tried to have the opt-out removed. The opt-out therefore survives, at least for the time being.
Breach of Contract Claims – Tribunal Jurisdiction
Employees are able to bring claims for breach of contract in the Employment Tribunal subject to a limit of £25,000. Where employees have breach of contract claims in excess of this limit, they have sometimes decided to issue employment tribunal proceedings in order to obtain a quick decision on their claim. They then seek to pursue a claim in the civil courts for their excess of compensation over £25,000 once the Tribunal has decided the matter. The Court of Appeal has now ruled that the excess over £25,000 in a Tribunal breach of contract claim cannot be recovered in the civil courts. In effect any further course of action for breach of contract ceased to exist when the Tribunal made a judgment and the Tribunal judgment was limited to £25,000.
Statutory Holiday Entitlement
The Department of Trade and Industry is undertaking public consultation on proposals to extend statutory holiday entitlement to include permanent bank and public holidays. Under the proposals a worker’s statutory entitlement to paid annual holiday will increase from 4 weeks per year to 5.6 weeks per year up to a maximum of 28 days. This will be calculated pro rata for part timers. This is because there is no current statutory entitlement to the 8 normal bank holidays.
Maternity and Adoption Leave Regulations
The Department of Trade and Industry has also published draft Maternity and Parental Leave Etc and Paternity and Adoption Leave (Amendment) Regulations. These are intended to implement changes which have been brought in by the Work and Families Act 2006. The changes include the removal of the current 6 month service requirement for additional maternity leave; the amount of notice an employee intending to return early from additional maternity or adoption leave is to be doubled from 28 days to 8 weeks; the Regulations introduce “keeping in touch days” so that an employee on maternity or adoption leave can agree with the employer to work up to 10 days during the statutory maternity leave period without that work bringing the period of maternity leave to an end. There will not be any obligation to offer such work nor for employees to accept it. The Regulations are likely to take effect from October 2006.
Grievances and Tribunal Jurisdiction
The regime introduced in 2004 to reform Employment Tribunal practice include the requirement for employees to raise formal grievances before being allowed to issue Tribunal proceedings. There has been a raft of litigation to decide what may or may not be a grievance. The courts have adopted a liberal approach to the definition of grievances within the Regulations. Grievances which have been considered to be valid include a letter of resignation in a constructive dismissal case; a solicitor’s letter from the employee’s solicitor even though it was marked “without prejudice”; a grievance rejected by the employer leading to the employee’s resignation; and a formal request for flexible working where an earlier informal request had been rejected. It is not necessary for an employee to say that he wants the complaint treated as a grievance and nor is there any requirement to comply with any internal procedures. Employees do not have to ask for a meeting to discuss the complaint and the Regulations do not require an employee to set out the basis for the grievance until the employer invites him to a meeting.
Vicarious Liability for Harassment
In general terms employers are vicariously liable for the acts or omissions of their employees which take place in the course of their employment. The House of Lords has recently upheld a Court of Appeal decision that an employer can be vicariously liable in damages for an employee’s breach of the Protection from Harassment Act 1997. There is a dissenting view that it was not just unreasonable to hold an employer vicariously liable for a statutory duty that was personal in nature. In this case the claimant made a formal complaint of harassment against his manager whom he claimed had bullied and intimidated him. The claimant brought a claim in the County Court claiming damages for distress under the Protection from Harassment Act 1997, and the employer has been held to be liable.
If you have any questions on the above points or on employment law generally, please speak to Nick Roper, Partner on 01752 292357.