ECJ up the ante on Working Time Records

While the UK remains a member of the EU the decisions of the ECJ on employment law will be binding on UK employers/the Government (depending on the circumstances). Indeed, as I have discussed before, even after the departure the decided cases of the ECJ are likely to be binding after Brexit.

Last week the ECJ promulgated its decision in the case of Confederación Sindical de Comisiones Obreras (CCOO) v Deutsche Bank SAE , a case which  brought by a Spanish Trade Union. The basis of the case was that CCOO asserted that to comply with its Working Time Directive obligations an employer must record all the time that an employee worked. If it did not then how can the employer show it has taken all necessary steps to ensure its workers were not working excessive hours? The court heard evidence that 54% of overtime that was worked was not recorded by employers.

The ECJ found agreed with the CCOO’s arguments and, in a key passage, noted that:

The classification of hours as ‘overtime’ presupposes that the amount of time worked by each worker concerned is known and therefore measured beforehand. The requirement to record only overtime hours worked does not therefore provide workers with an effective means of ensuring, first, that the maximum weekly working time laid down by Directive 2003/88 — which includes overtime hours — is not exceeded and, second, that the minimum daily and weekly rest periods provided for by that directive are observed in all circumstances. In any event, that requirement is not capable of compensating for the lack of a system which, as regards workers who have not consented to work overtime hours, could guarantee actual compliance with rules concerning, inter alia, maximum weekly working time.

The effect of the case is that in order to comply with the Working Time Directive and employer must have  an effective system to monitor all working time of an employee, including all overtime, whether paid or unpaid.

In a UK context the Working Time Regulations (which give effect to the Working Time Directive) require an employer to maintain “adequate” records. It is clear that this should now be interpreted in line with the ECJ’s judgement here and that if all paid or unpaid overtime is not recorded then the records are not adequate. The Health and Safety Executive have responsibility for Regulation 9 (in which the record keeping requirement is set out).

For trade unions it strikes me this decision is provides an opportunity to press for better consideration on the amount of ‘off the books’ work an employer’s workers undertake. The TUC already have a work your proper hours day but this allows unions to lobby employers to ensure that these records are maintained and shared with recognised unions. Not only will this assist in arguing for properly staffed workplaces but could, conceivably, also in the right cases also form the basis of so unlawful deduction of wages claims.

It is certainly the case that in many areas the actual work an worker does – whether paid or out of hours and even on holiday periods – exceeds that which they are contracted to do. This requirement to record all hours potentially provides unions with an organising opportunity to resist the long hours culture.

 

 

 

Holiday Pay: Use it or Lose it?

One issue I have found myself advising workers on more and more recently is on the subject of holiday pay, specifically whether an employee should be compensated for any holiday she has not been able to take because of her long term absence from work. It has also become a check I take on all cases when a member has been dismissed, again especially when a member has been absent and is dismissed for sickness absence reasons.

The holiday that is relevant here is not a worker’s entire contractual holiday allowance but the 20 days a year that is guaranteed by the EU Working Time Directive (WTD). There have been numerous cases that are helpful to employees that allow a worker’s annual leave allowance to be carried over into subsequent years on the basis that because a worker could not take leave in a particular year then that carries over (meaning of course that if they return they have a lot more annual leave or, if they leave employment they can make a claim for the unpaid holiday pay).

These cases have focused on those who been unable to take leave because of sickness and it has generally been assumed that if a worker can take the leave but does not do so then the entitlement is lost and can not get carried over. In Max-Planck-Gesellschaft v Shimizu the CJEU (EU Court) has provided a helpful correction to that view.

Prior to his departure from his employer Mr Shimizu had taken limited annual leave in the preceding two year, only two days in fact. In the week before he left employment Mr Shimizu asked his employer for compensation for 51 days taken annual leave over the previous two years (called an “allowance in lieu”) but this was refused – the employer taking the view that Mr Shimizu had been able to take the leave and just did not do so.

The German court made a preliminary reference to the CJEU on the interpretation of Article 7 of the WTD. Article 7(1) requires that

Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

Article 7(2)  also clarifies that

The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

The CJEU recognised that workers are the weaker party in an employment relationship and could be dissuaded from taking leave – even if not actively obstructed – for many reasons. The court determined that in cases where there is no sickness absence it is still not the case that a worker will automatically lose entitlement to holiday if he has not taken this. Whilst it is the case that entitlement to the leave can cease at the end of a leave year this will only apply if the employer can prove that they have given the worker every opportunity to take the leave in advance of the end of the year leave. Therefore, the burden will now be on an employer to show that they have encouraged and facilitated the exercise of a worker’s holiday rights rather then on the worker to show that they could not take the leave.

What does this means for EU workers

For workers in EU member states the implications of this judgement are significant and helpful in two ways.

For workers of private (non state) employers the WTD is not directly effective, this means a worker cannot rely on the WTD in any legal claims for breaches of their individual rights. Instead the member state (e.g., the UK) must pass regulations to implement the WTD into domestic law, this was done in the UK through the Working Time Regulations 1998.

Domestic regulations must now be interpreted with this judgement in mind so that domestic courts should now allow claims from former workers on the basis that they dd not take their full WTD holiday pay before they ended their employment – and if you are such a worker who has ended their employment in the last few years it might be worth your while to seek legal advice on whether you can now pursue a claim.

Interestingly however, if courts are not amenable to interpreting holiday pay regulations consistently with this judgement or the regulations are contrary to this a worker may not need to wait to bring a claim until the regulations are changed or face bringing action against the member state itself in EU proceedings. Max-Planck-Gesellschaft v Shimizu also made clear that holiday pay is a constitutive element of Article 31(2) of the Charter of Fundamental Rights of the European Union which states

Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

The significance is that the Charter is directly effective, this means it is a right that does not depend on further legislation or action by the member state but can be relied upon as it is by a worker in any legal action (including in an Employment Tribunal). And so, in the case of the actual complainants while it is likely that German labour law was incompatible with both the WTD and Article 31(2) even if the German Goverment were not to act on this finding that would not change the right of every German worker (or other EU worker for that matter)  from seeking unpaid holiday pay, irrespective of whether they were employed by a public authority or private employer.

What this means for UK workers

As it stands the judgement means the same for UK workers as any other EU worker. For UK workers they can, while the UK remains an EU member, make a claim in UK courts directly relying on Article 31(2) of the Charter or relying on the CJEU interpretation of Article 7 of the WTD to interpret the UK Working Time Regulations (in this case section 13(9)(a) of the WTR 1998).

Brexit is of course a volatile subject and who knows what will change between now and Brexit day. Based on the current situation the fact that this interpretation is based on  direct EU legislation and takes place before Brexit day then this will be binding on UK courts and tribunals even in the event of a no-deal by the application of section 6(1) of the European Union (Withdrawal) Act 2018 although Supreme Court will not.

Therefore the EU Withdrawal Act does indeed mean that EU case law that was promulgated before Brexit day will remain binding on court and tribunals, meaning this holiday pay judgement will too. However, it does introduce some uncertainty in that the when faced with a question the Supreme Court, unlike other courts and tribunals will not be bound to follow EU case law. And so, for the short term at least, this judgement will remain applicable to UK workers as it relates to the WTD.

Unfortunately, while the WTD will continue to apply it seems very unlikely that the Charter for Fundamental Rights will. Of course, since the WTR have long been the subject of Conservative sabre rattling it is not hard to imagine that if they have their way  that days of holiday pay as we know it may well also be numbered.

 

Can a temporary ailment be a Disability?

My broken wrist in a blue fiberglass castMary is a typist, a role she has done for many years. After over ten years with a company she took the plunge and joined a new employer four months ago because they offered a higher salary.

However, a few weeks after starting her role she had an unfortunate accident at home and she broke her hand after a construction materials fell onto it. She needs both a cast and physiotherapy to recover, but a full recovery is expected in 7 to 9 months. Until then while she is not able type she may be able to do some work .

Not unsurprisingly Mary’s new employers are sympathetic but since her role is as a typist are concerned they cannot accommodate her absence from work for up to nine months and are considering dismissing her from employment. Aware that apart from any discrimination or procedural errors a dismissal would be very unlikely to be unfair – let alone that as she has not been employed for the two years necessary to make a claim – Mary wants to argue that her hand injury is a disability as that will give her more grounds upon which to challenge her threatened dismissal.

Disability

Disability is a protected characteristic under the Equality Act 2010 and so, if Mary’s hand injury were  disability, Mary would have a right of redress against a dismissal (although that is not to say she would win a claim).

The UK Law is itself based on EU Law, specifically Council Directive 2000/78/EC . Although not defined the European Court of Justice (ECJ) in the case of Chacón Navas  explained that disability amounts to

“a long-term limitation which results in particular from physical, mental or psychological impairments and hinders the participation of the person concerned in professional life.”

Clearly, an inability to type is a normal day to day activity but is also central to Mary’s professional so if this is a ‘long term limitation’ Mary can be disabled. So what does long term mean? Schedule 1 Part 1 of the Equality Act 2010 defines a long term impairment as one that is “likely to last for at least 12 months.”

The UK Government’s Equality Act Guidance on the meaning of disability explains ‘likely’ “should be interpreted as meaning that it could well happen.” So, Mary’s prospects of suggesting that she is disabled in the acct will depend on whether an employment tribunal found that her hand condition ‘could well’ be an impairment that lasted for twelve months or more. Given that the evidence is that it will last for just 7-9 months it does not look like Mary’s prospects of establishing she is disabled are very good.

However, as a union representative I would, faced with this situation make sure that the employer is forced to make a decision that the individual is not disabled by setting out the view that a condition could well continue to effect the employee for more than twelve months and that the employee is disabled with the corresponding obligations that that places on an employer. This is because good employers will as a matter of best practice give the benefit of the doubt to an employee if there is uncertainty and, even if the employer does refuse to accept this then this can be used as a basis of future challenge.

Temporary Incapacity can be a disability

However, it seems to me that the 12 month period of impairment may well be suspect. In Daouidi v Bootes Plus SL, which was a preliminary reference from the Spanish national courts, the CJEU considered whether in a situation similar to Mary’s a person could be disabled because of a temporary incapacity and decided that she might be.

The claimant, Mr Daouidi, had recently started working for a restaurant (Bootes Plus SL) when he had an slipped at work and dislocated his elbow, this accident prevented him from working. Mr Daouidi was absent from work. Approximately 7 weeks after the accident Mr Daouidi was still absent from work and because there was no clear information about when he would recover Mr Daoudi was dismissed from his employment and he challenged the dismissal in Spanish courts, with one of his grounds being that he was disabled even though he was expected to recover within an indeterminate timescale.

Some six months later when appearing before the Spanish judges Mr Daouidi still had his arm in a sling and the judges wondered whether this could amount to  long term condition. As the EU court often does in preliminary ruling the court did not decide the case so we do not know whether Mr Daouidi was found to be a disabled person.

However, two things are of note in the judgement. First, the fact that a condition is temporary or in the nature of an accident (such as a dislocated shoulder) does not itself mean the condition cannot be a disability.

Second, it remains the case that the term “long term” remains undefined but the court did not demur that an injury that lasts 6 months and interferes with professional life could not constitute a long term condition (even though they did not state it was). The court also observed that

According to settled case-law, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union … In the absence of such an express reference to the law of the Member States, the concept of a ‘long-term’ limitation of a person’s capacity, within the meaning of the concept of ‘disability’ referred to by Directive 2000/78, must therefore be given an autonomous and uniform interpretation.

In short, “long term” should normally be given a uniform interpretation so that, for example, long term should mean the same in the UK (while the UK remains subject to the EU that is) as in Ireland, Spain, France etc. Interestingly, it appears that after the CJEU the Spanish Courts did in fact find that Mr Daouidi was disabled because of a long term injury even though on the test in the Equality Act 2010 he would have been unlikely to have met the definition of long term this set out.

The UK legislation that defines “long term” as likely to last 12 months or more has the advantage of certainty but it seems to me it is not an inviolable requirement and a person such as Mary may be a disabled person under Directive 2000/78 even though they may not under national law that was enacted to implement the directive.

So, would Mary be disabled? Possibly.