Holiday ruling shows that red tape is hard to cut

The European Court of Justice ruled yesterday that employees who fall ill while on annual leave can retake their leave at a later date. This ruling has been expected by employment lawyers for some time and the government is to make changes to the Working Time Regulations to both comply with the ruling and also deal with the difficult issue of how annual leave can be carried over by employees who are unable to take their entitlement due to sickness. The consequences of this ruling are however potentially extremely costly for employers and in particular small businesses.

A few years ago I went on a holiday to Egypt. We had a wonderful time enjoying the hot weather, spending time relaxing on the beach or by the pool, seeing the sights and going diving. The only slight downside to this trip away was that, to put it delicately, I had some tummy troubles for the first few days. I was still able to enjoy myself but I had to ensure that I was not too far away from the nearest WC.

Arguably the above scenario is not uncommon for many holidaymakers; however, these symptoms potentially could be classed as sickness and that if this happened again I could claim that I should be entitled to retake my annual leave at another time.

You could probably argue that my upset stomach was partially self inflicted in that I went to Egypt where the heat combined with the change in food/water meant that it was much more likely that I would pick up some form of bug. So in the future could employers decide that under their contracts of employment employees should be required to avoid certain destinations or types of holiday e.g. skiing, snowboarding or diving?

It also raises the question as to what happens if the employer only pays SSP and the employee declares that they they were off sick and want to re-take their annual leave at another time. Can the employer recoup the holiday monies that may have already been paid to the employee? Also how much time can elapse between the employee being ill while on leave before they tell their employer. Should they tell the employer on the day that they are sick as they are often required to do so under their contract of employment or can they wait until their return from leave? 

What is probably not in question is that this ruling means that a further burden will be placed on employers. The costs of complying with this obligation will probably outweigh the savings for employers that may have been made by the increasing of the length of service required to make a claim of unfair dismissal and the proposed changes contained within the Enterprise and Regulatory Reform Bill.

I am not aware of any ministers criticising the ruling and the resulting consequences for employers. There have been no promises to try and change the law at European level, probably because in the EU it is easier for laws to be created than for them to be repealed. What this ruling shows is that the government’s promise to reduce red tape for employers is perhaps one that they will struggle to keep.

Employers should take note of the handling of Nalbandian

The defaulting of David Nalbandian in the  final of  the Aegon Championships at the Queens Club was one of the big sporting headlines of the weekend. Having watched the footage of Nalbandian kicking the advertising hoarding into the shin of the line judge I think that they had little alternative but to default him and award the match to Marin Cilic. The rules are clear with our very own Tim Henman was defaulted for similar reasons early in his career when he hit a ball girl with a tennis ball while smashing it away in a fit of pique and Serena Williams being defaulted in the 2009 US Open semi-final due to her abusing a line judge.

The purpose of this rule is to act as a deterrent against players abusing umpires and line judges. Employers also have a similar obligation to protect their employees in that they owe them a duty of care, including to provide them with a tolerable working environment. The case of Horkulak v Cantor Fitzgerald made it clear that an employee could successfully claim constructive dismissal if their working environment had become intolerable. In the Horkulak case the claimant resigned due to the behaviour of his line manager who constantly used foul and abusive language but the principles of the Horkulak case could similarily apply if a third party, such as a customer, was behaving in an intimidatory or offensive way towards the employee and the employer took no steps to prevent it.

There is also specific legislation within the Equality Act to protect employees from 3^rd party harassment if it is on the grounds of one of the “protected characteristics” (e.g. race, sex, disability etc.) If a third party harasses an employees in such a way (e.g. racially abuses them) and the employer is aware of this harassment but fails to take steps to prevent further harassment then if there are a further two instances of harassment then the employee can make a claim against the employer.

Employers should therefore follow the example of the ATP and ensure that their employees are protected from the unacceptable actions of third parties as if they do not do so they could leave themselves open to claims of constructive dismissal or harassment - particularly if a rather irate tennis player comes onto the premises.  

Some happier tennis players!

Time off for Euro 2012 is not an issue

Euro 2012 starts on Friday. Two years ago, before the last world cup, articles were being written about whether employers should allow employees time off to watch the games (legally there is no obligation to do this). England's first match is against France and is scheduled to kick off at 1700 hours BST on Monday 11 June. This means that the working day may be eaten into by employees who want to slope off early to watch the match. So why no articles on this topic? I would suggest that it is probably due to one of the following reasons:-

1) The England v France match is the only game that England will play that will take place during normal working hours so it is not worth worrying about.

2) 1700 hours is normally at the end of the working day so it is probably not that much of an issue.

3) Nobody seems to expect England to do very well in this tournament so there are potentially very few people who care.

Alternatively it may be the case that these types of articles are being used for the Olympics!