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sick leave and holiday entitlement

The House of Lords has today delivered its decision in the case of Stringer -v- HMRC which concerns whether or not an employee accrues holiday entitlement while off sick.

The Court of Appeal had held that employees on sick leave did not accrue holiday entitlement while they were off sick but this decision has been overturned by the House of Lords, taking into account guidance from the European Court of Justice earlier this year.

The decision also means that employers cannot reduce termination payments on account of sickness.

What this means for employers is that their employees must be allowed to take holiday entitlement accrued during a period of sickness absence or be paid in lieu if their employment comes to an end. To the surprise and dismay of many employers, this means that an employee could delay returning to work by using accrued holiday entitlement at the end of an extended period of sickness absence.

This development will come as no surprise to those used to dealing with maternity leave. It is common for maternity leave periods to be extended by accrued holiday entitlement. However, unlike the maternity leave provisions applied by most employers which cover the minimum statutory entitlement, there is no statutory entitlement for employees to be paid during sickness absence above the very limited SSP entitlement.

It is likely that this decision and the sense of injustice which is likely to be felt by some employers may well lead to reviews and reductions of sick pay entitlements.

Categories
contract terms unfair dismissal

smoking in the pub

I went to university at York and one of my favourite pubs (of many!) was the Brown Cow, not least for its finely kept Samuel Smith’s beers!

The pub has made the news recently because the landlord, Paul Brown, has been sacked for gross misconduct and evicted for smoking in the pub. Not that remarkable you might think (particularly after the Blackpool pub cases which made the news) but the interesting aspect is that he lived at the pub and smoked “after hours”. However, the Council inspectors found full ashtrays when they visited. Mr Brown maintained that he’d brought them in from the pub garden and also pointed out that he and his wife, Carol, could not access his accommodation other than by a scaffolding staircase.

The Press (formerly the Yorkshire Evening Press) have reported the story as follows:

“Solicitors for Tadcaster brewery Samuel Smith’s have written to Paul Brown’s lawyers to request him to vacate the flat above the Brown Cow as quickly as possible, saying the brewery trusts no further action will be necessary.

“The tone of the letter from Cobbetts solicitors of Manchester contrasts with an earlier one from the firm, which warned Mr Brown he and his wife, Carol, were occupying the flat as trespassers and were required to vacate the premises by March 4, or face the risk of court action and a claim for costs.

“But Mr Brown insisted today he still had no intention of leaving the flat in Hope Street, off Walmgate, until the brewery returned a £1,000 bond which he had paid when he became manager a couple of years ago.

“He also said he was still appealing to the company against his dismissal and would then take the matter to an employment tribunal if the appeal was dismissed, as he expected.

“The Press exclusively revealed earlier this month how Mr Brown had been dismissed for gross misconduct by the brewery after it discovered he had been caught smoking in the Brown Cow bar by a York licensing officer and fined.

“The brewery arranged for a temporary staircase made with scaffolding put up at the back of the pub, which Mr Brown and his wife had to use to get into the flat through a window.

“Mr Brown said he had only lit up after closing the pub early one evening, having wrongly believed that smoking legislation did not apply in a shut pub.

“He later won the backing of the UKIP MEP Godfrey Bloom, who said he thought the reaction of both the authorities and the brewery had been over the top.

“The brewery has consistently declined to comment on the matter, but the latest letter from Cobbetts states Mr Brown’s “service occupancy” meant his right to reside automatically terminated when his employment came to an end.

“It states: “Normal rules of tenancy do not apply to occupational licences, rather the same rules apply to our clients as they do to trespassers.” The firm said Samuel Smith’s would be contacting Mr Brown shortly to arrange an appeal hearing. “Your clients should rest assured that they will have the opportunity to put forward their full grounds of appeal at the hearing and the company will respond appropriately.””

The case brings sharply into focus the idea of a “public house” in the context of the smoking legislation and the difficulties which can occur when seeking to apply a law which impacts on the rights of an individual. Does a public house cease to be a public place when it is not open to the public? – apparently not. But how does this impact on a place which serves a dual purpose as a  place which is open to the public and also provides someone’s “private” accommodation? There is an apparent anomaly in the curent legislation because hotels can still provide “smoking ” rooms even though they are serviced by employees as part of their place of work.

There is also the matter of private parties. When the proposed legislation was making its way through Parliament there was an expectation that private members’ clubs would be excepted but they were included as the result of a late amendment. The result is that there is an inconsistency in the application of the law in that the rules vary from one local authority to another. What constitutes “private premises” and when? If you hold a public party at your home is smoking allowed? Apparently so but not in York and not with a clear sanction from the legislation!

It is also interesting to see how the law is applied in other jurisdictions. I was recently in Majorca and caused some consternation when I popped out from a restaurant for a cigarette. Having just arrived, I hadn’t noticed the ashtrays on the dining tables! Smoking was allowed because the restaurant was designated as a smoking area with a suitable (local authority approved!) notice hanging near the door.

Subscribers can find out more about the application of the smoking legislation in the UK from this link: http://www.clbemployment.com/empsolprotected/topics/smoking.php
…and more about service occupancies from this link: http://www.clbemployment.com/empsolprotected/topics/residential_staff.php.

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Liverpool FC facing potential litigation following dismissal of 16 backroom staff!

Ex-employees with over 150 years service between them have stated that the Club, who are said to be in increasing financial difficulty, have given them no valid reason for their dismissals along with inadequate ‘pay off’ packages.

It is thought that some of the ex-employees are preparing unfair dismissal claims against Liverpool FC which could see the Club having to pay out significant amounts of compensation.

Liverpool seem to be arguing that the dismissals are part of a redundancy consultation in an attempt to reduce staff expenses, however the ex-employees are under the impression that they will shortly be replaced by Rafas ever increasing Spanish contingent – watch this space!