This update on recent developments in employment law was contributed by Steele and Co.
In this issue we report on:
– THE TEMPORARY WORKERS DIRECTIVE
– THE DATA PROTECTION CODE
– CAREER BREAKS – DO THEY AFFECT CONTINUITY OF SERVICE?
– WORKING TIME
THE TEMPORARY WORKERS DIRECTIVE
The EC Temporary Workers Directive has now been adopted by the European Commission. We have yet to receive the final text of the Directive, however, the Press Association issued a press release stating that the Commission wants
temporary workers to receive the same pay and conditions as regular permanent employees. Anna Dimantopoulou, Commissioner responsible for employment and social affairs has stated that the plans provide plenty of flexibility for national authorities to apply the rules in line with
domestic practice.
According to the Press Association 80% of temporary agency workers in Europe are employed in just four member States – Britain, Germany, France and the Netherlands.
The CIPD is one of several organisations that have criticised the Directive, stating that it is unnecessary and impractical and will limit opportunities for ‘temps’.
Carmel Sunley, Partner and Head of the London Employment Team comments, “we have had legislation implemented to boost the benefits afforded to part-time workers in respect of holiday and other benefits offered to full-timers. This new Directive will seek to now boost the benefits afforded to the temporary agency workers which are a major sector
of the labour market. Of course ultimately this will mean that the cost of temporary workers will increase, hence the criticism from the CIPD that the Directive will limit opportunities for temps”.
THE DATA PROTECTION CODE
The first part of the Employment Practices Data Protection Code on recruitment and selection has now been issued. You should now be able to obtain a copy from the Data Protection website at www.dataprotection.gov.uk
This is the first of four parts to the Code of Practice. Part 2 deals with employment records and is due to be published next month. Parts 3 (monitoring at work) and 4 (Medical information) are due at monthly intervals thereafter.
It is reported that the Information Commissioner may, but does not intend, to change the substantive content of the Code prior to its formal publication.
CAREER BREAKS – DO THEY AFFECT CONTINUITY OF SERVICE?
The Employment Appeal Tribunal has recently ruled that a career break of four years did not interrupt an employee’s continuity of service.
The case concerned a woman who had started work in 1973 and then, in 1990, took a four-year employment break under her employer’s ‘child break scheme’. She then returned to work in 1994 and was made redundant in 1999. Her employers’ calculated her redundancy pay on the period from 1994 to 1999 and paid her accordingly. The Appeal Tribunal ruled that her redundancy pay should have been calculated from 1973 and that her continuity of service was not interrupted by the ‘career break’.
This decision has attracted a lot of press and should be seen as a warning to employers who offer their employees career breaks. Prior to this decision many employers argued that the original contract of employment is terminated when an employee takes a ‘career break’ and that on their return a new contract is started. In our last edition of Enews we reported that the EAT decided that employees on long-term sick leave still accrue holiday entitlement even though they are not working. It may be possible for employees on “career breaks” to argue that they accrue holiday entitlement during the break and are entitled to be paid for it.
WORKING TIME
In the case of Gridquest Ltd t/a Select Employment and Others v. Blackburn and Others the Employment Appeal Tribunal has held that a payment added to a basic hourly rate to cover holiday pay may count towards a worker’s entitlement to paid leave under the Working Time Regulations 1998. On the facts of this case the EAT was prepared to give the employer credit for a holiday pay element rolled up into an hourly rate. Regulation 16 of
the Working Time Regulations makes provision for credit to be given in respect of any contractual remuneration paid to a worker in respect of holiday.
The case was remitted back for re-hearing before an employment tribunal. Carmel Sunley, Partner and Head of the London Employment Tribunal comments that “in this case it is difficult to see how a tribunal will find a contractual term however, given the fact that the workers were unaware of it. Accordingly, the practical impact of this case may be limited”.
