Four court decisions for you all to bear in mind

Charities should examine these cases, which concern peripatetic workers, working time, the meaning of establishment, tribunal fees and sick leave, writes Gill Taylor

Gill Taylor
Gill Taylor

There have been four key court decisions in recent months that charity managers should be aware of, two of them from the European Court of Justice. The first concerns peripatetic or mobile workers and working time, which is relevant to charities employing care workers.

A recent case in the ECJ from Spain concerned technicians who, after regional offices were closed, were assigned to a central office in Madrid and no longer went to an office during the day. Instead, they travelled directly to and from customers' premises, and issues arose about what counted as working time. The technicians brought a claim against the employer that the time spent travelling at the beginning and end of the day constituted working time.

The ECJ decided that workers who are not assigned a fixed place of work may count the time spent travelling from their home to their first appointment and the time spent travelling home from their last appointment as working time for the purposes of the Working Time Directive. This applies in the UK.

What are the implications? First, time spent travelling to and from home to certain jobs at the start and end of the day may be working time - but only for certain workers with no habitual place of work.

This might affect employers who use peripatetic workers, such as those in the care sector. They should review working practices to ensure overall working time and rest breaks are adequate and do not breach the working time legislation.

Employers might also consider scheduling early and late appointments at sites close to workers' homes. Note that staff can opt out of the 48-hour limit on the working week in the Working Time Directive, but employers cannot insist on staff doing so.

Another ECJ decision clarifies the meaning of the word "establishment" in UK redundancy consultation laws. It reverses the controversial Employment Appeal Tribunal decision of July 2013 to delete the words "at one establishment" from section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

The EAT decision meant, in effect, that an employer proposing 20 or more redundancies across the whole organisation within 90 days would have collective consultation obligations, even if the number of proposed redundancies at each site was fewer than 20.

The ECJ decision finds that collective redundancy consultation is triggered only when 20 or more redundancies are proposed in an "establishment". For a retailer, this is likely to mean a single store, or, for an organisation with regional branches, each regional branch.

In the UK, the appeal court has dismissed a Unison challenge to the employment tribunal fees system. A crumb of hope, however, was the court's assertion that the decline in claims was sufficiently "startling" to warrant a review of fees to prevent people being priced out of bringing claims.

Finally, there has been clarification of how long workers on long-term sick leave can carry over holiday. The EAT in Plumb v Duncan Print Group Ltd held that, where an employee chooses not to take statutory annual leave during sick leave, they could carry forward the untaken annual leave for up to 18 months from the end of the leave year in which the leave arose.

Gill Taylor is a sector HR consultant

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