I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department. I maintain this website so if you have any suggestions, criticisms or recommendations please email me at martinmalone@canter-law.co.uk. Outside work my interests include national hunt horse racing, France and French wine and current affairs. I also design and maintain websites.

Important ECJ decision opens up the possibility of valuable retrospective holiday claims

I have written in this blog on many occasions about the importance of getting it right if you are going to treat all or part of your workforce as self-employed, rather than as fully fledged workers or employees. As you may recall, the Pimlico Plumbers case earlier this year ruled in favour of the claimants, finding that they were workers rather than being “fully” self-employed and therefore entitled to holiday pay and other benefits. The issue has been a hot topic throughout 2017 with the Uber and Addison Lee cases for example showing a willingness on the part of the courts to find that there was an employment relationship where, previously, there was assumed not to be.

But what basis should be applied for calculating losses if an entitlement to retrospective holiday pay or other benefits is established. The normal cut off point for calculations is six years, since this is the time limit for claims based on breach of contract. However, the entitlement to paid holidays arises under the EU Working Time Directive and this has a statutory footing.

This issue was recently considered by the Court of Justice of the European Union (CJEU/ECJ) and judgment was delivered in the case of King v The Sash Window Workshop Limited and Dollar on 29 November. Mr King had started working for Sash Window Workshop (“the Company”) in June 1999 on a “self-employed commission only contract”. He continued to work for the Company until his retirement in 2012. He took numerous holidays during the 13 years that he worked for the Company, but was not paid for them. Following his retirement he asked to be paid all his holiday pay for the entire period of his engagement. Unsurprisingly, the Company refused.

Mr King took his claim to an employment tribunal which held that there were in effect three types of holiday claims: (i) holiday pay for 2012-13 accrued but untaken when he left, (ii) holiday pay for leave actually taken but in respect of which no payment was made and (iii) pay in lieu covering accrued but untaken leave (amounting to a further 24.15 weeks). The tribunal found that Mr King was a worker (within the meaning of the statutory definition – see the Pimlico case) and therefore ruled in his favour in respect of all three.

The Company appealed to the Employment Appeal Tribunal.

The end of “fit to work” notes and referrals

Back in March 2010 I reported about the proposed introduction of fit notes, noting that the Government expected savings to the economy of £240 million over 10 years, by aiding the recovery to work of sick workers. Well, it didn’t turn out that way. By July 2010 there were teething problems. Bogus fit notes were widely available on the internet and offered for £9.99 with an introductory “buy one get one free” offer. A further and entirely predictable problem was that employers receiving the fit notes were unable to decipher GPs’ illegible handwriting and therefore overlooked key elements of the process such as, for example, arranging a structured return to work.

In 2015 the Engineering Employers Federation (EEF) reported that the scheme wasn’t working. By September 2014 only 5000 GPs from a pool of 40,854 had received training and 43% of employers said that the fit note had not helped employees to return to work. The EEF’s head of health and safety noted that the quality of advice being given by GPs to help people back to work was deteriorating and that, in order to work, the scheme needed greater resources.

Late in November 2017 it was quietly announced that the scheme is to be scrapped.

A bitter feud played out in the High Court

Embed from Getty ImagesOver the last few weeks the High Court has heard some astonishing evidence in the bitter wrongful dismissal claim brought by the former CEO of Signia, a wealth management company, as reported in The Independent.

High profile entrepreneur John Caudwell has frequently made the news over the last couple of decades. The founder of mobile phones retailer Phones 4U has presented himself as a forthright, no-nonsense style of businessman. According to the website Caudwell.com (owned, registered and administered by one John D Caudwell and which is currently “down for maintenance”) he is a “successful entrepreneur and philanthropist” who “built an immensely successful mobile telecoms company”.

Signia is a wealth management company that was jointly founded by Nathalie Dauriac and six of her Coutts Bank colleagues in 2010. Another co-founder was Mr Caudwell. The business focuses on high end wealth management. All appeared to be well until details emerged of an extraordinary dispute between Ms Dauriac and Mr Caudwell, ostensibly in connection with expenses claims amounting to some £33,000. Ms Dauriac claimed that the expenses investigation was unfair and was, in effect, trumped up to deprive her of her £12 million 49% stake in the business, which was bought out for a nominal £2.00 fee.

Giving evidence in the High Court trial Ms Dauriac says that when they set up the business in 2010, “Mr Caudwell had asked me…as a last minute condition of jointly setting up the business, to give an undertaking to him not to have children, a proposal I did not agree to”.

Ms Dauriac claimed in evidence that Mr Caudwell orchestrated an “elaborate conspiracy” against her, resulting in her claim of constructive dismissal.

For its part, Signia maintained that she wrongfully claimed the expenses, that her approach to them was “brazen” and that she was “guilty of gross misconduct”.

In his evidence, Mr Caudwell said that the breakdown of his business relationship with Ms Dauriac, who he considered to be a “best friend” was like suffering a “bereavement”:

Providing information about sickness absence in a reference ruled as discriminatory

Mr Paul Mefful began working as a volunteer at Southwark CAB in 2000. In 2003 he was employed as a general adviser and in 2004 he was promoted to senior adviser at Merton and Lambeth CAB following a competitive selection process. In May 2004 he became a specialist services manager. In (what was then) a Legal Services…

Is requesting a holiday from July to September manifestation of a religious belief that is capable of protection?

Where do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person’s belief…

Sickness absence at an all time low

The Office for National Statistics has published its annual report on sickness absence covering 2016, revealing that absence was the lowest recorded since records began in 1993. There were an estimated 137.3 million working days lost, equivalent to 4.3 days per worker. The most common reasons for absence were coughs and colds (accounting for 34…

Does a ban on wearing headscarves amount to direct discrimination?

In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In  Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v…