Roll up, roll up...
The Employment Appeal Tribunal has found in the case Lyddon v Englefield Brickwork Limited that a company was entitled to offset rolled up holiday pay against an employee's entitlement to annual leave under the Working Time Regulations 1998.

When Mr Lyddon started working for Englefield Brickwork Limited he was paid at the rate of £135 a day and was told that this would include holiday pay. Whilst he was not given a written contract, or written details of how the holiday was calculated, he received a weekly pay packet which included a computer generated statement setting out his basic wage, rolled up holiday pay and tax deductions. He was only employed at Englefield Brickwork for 17 weeks and therefore accrued 6 days annual leave. During the period he was employed, he had taken two weeks leave, for which he had received no pay, which he did not question at the time.

After leaving, Mr Lyddon presented a claim for unpaid holiday pay. His claim was rejected by an Employment Tribunal, so he appealed to the EAT. The EAT found that the fundamental question at issue was whether there was a consensual agreement identifying a specific sum properly attributable to periods of holiday. They considered that in this case there was. Whilst it is preferable that the sum attributable to holiday pay, or formula for calculating it, is set out in writing before a worker starts work, it is not essential.

This should be of great comfort to employers who have continued to pay rolled up holiday pay since the ECJ's decision in Robinson-Steele. In that case the ECJ had stated that rolled up holiday was unlawful and many thought it would result in the end of rolled up holiday pay altogether.

Redundancy consultation - how far does the obligation go?
The recent case of UK Coal Mining Limited v National Union of Mine Workers departed from previous authorities on the scope of the duty to consult in a collective redundancy situation. The EAT has found that there is a duty on employers to consult on the business reasons for making redundancies as part of the obligation to consult on ways in which the redundancies can be avoided.

UK Coal owned the Ellington Colliery in Northumberland. On 26 January 2005 they decided to close the colliery on safety and economic grounds which resulted in a proposal to make 158 employees redundant. This triggered the duty to consult with the trade unions under s.188 of The Trade Union and Labour Relations (Consolidation) Act 1992.

UK Coal started consultation with the unions, but went ahead with the first compulsory redundancies shortly after. The unions brought a claim for failure to consult and the Tribunal found that there had been serious and deliberate failures in consultation and awarded the maximum protective award of 90 days.

UK Coal appealed. The unions cross appealed against the finding that UK Coal was not obliged to consult over the reasons for the colliery closure.

The EAT found that, following amendments to s.188 in 1995, the new obligation to consult over the avoidance of dismissals had significantly widened the scope of the consultation obligation. This meant that the obligation extended to consulting about the reasons for the closure itself. The EAT were also persuaded by the union's arguments that given the broad obligation to consult over all sorts of economic decisions under The Information and Consultation of Employees Regulations 2004, it would be strange if the obligation to consult at the very point where loss of jobs was envisaged was more limited.

The EAT therefore found that the obligation to consult over avoiding proposed redundancies inevitably involved engaging with the reasons for the dismissals, and that in turn required consultation over the reasons for the closure.

Employers considering work place closures will need to ensure they consult over the business reasons for the closure, as part of the obligation to consult over ways in which the redundancies can be avoided. The EAT did however acknowledge that it will be the proposed dismissals that are the subject of consultation, not the closure itself.

Can a minister of the Church also be an employee?
There has, historically, been reluctance on the part of the UK Courts to find that the appointment of a minister of religion involves the creation of a contract of employment, primarily due to the perceived absence of an intention to create legal relations in ecclesiastical matters. This view has however gradually been eroded and in the New Testament Church of God v Stewart the Court of Appeal have found that a pastor was an employee of the Church.

Reverend Stewart became a pastor at the Harrow Church of the New Testament Church of God in 1999. He had no written contract but received his salary through the Church's national office based in Northampton and he joined the Church's pension scheme.

In June 2005 Reverend Stewart was removed from his position of Pastor for misappropriating funds from the Church. He presented a claim for unfair dismissal and both the Tribunal and the EAT found that he was an employee. The Church appealed to the Court of Appeal.

The Court of Appeal found that the Tribunal Chairman had been entitled to find an intention to create legal relations between the Church and Reverend Stewart and that the contract the parties had entered was a contract of employment. They did go on to make clear however that the case did not involve a general finding that ministers of religion are employees. Nonetheless, the judgment does demonstrate that a Tribunal will be ready to find that a minister is an employee if the facts support it.

To stay, or not...
The EAT have overturned the employment tribunals refusal to stay an age related claim pending the Heyday challenge (reported in last months update). In Johns v Solent the EAT found that by refusing to stay the case, the employment tribunal was pre-empting the Heyday decision and this was not acceptable. As a result, there could be numerous claims relating to forced retirement stayed pending the ECJ Heyday decision which is not expected until 2009.

And finally - time limits really do matter...
Miller v Community Links Trust is a sobering reminder that if a document is due at the Tribunal by midnight - then midnight is an absolute cut off.

In this case, on the final day for presenting an ET1 to the Tribunal, the Claimant's representative pressed transmit on the Employment Tribunal Service website at 1 second before midnight. It arrived on the ETS server at 8 seconds past. The claim was out of time.

The Queen's speech - Flexible working
In the Queen's speech, the government promised to "help people achieve a better balance between work and family life". This aim is to be met by extending the right to request flexible working to parents of older children, but what impact will this have? The scope for rejecting a request under the current legislation is very broad and, unless the government change this (which is not proposed), the extension of the right is unlikely to have a significant impact on businesses.

Immigration - Points Based System
It was recently announced that Tier 1 of the new points based immigration system will be implemented by March 2008. Tier 1 relates to highly skilled workers and we will be producing more detailed information early in 2008.

Bulgarian and Romanian Workers
When Bulgaria and Romania acceded to the European Union, the UK government placed restrictions on the freedom of movement of workers from those member states into the UK. It has been announced that these restrictions will remain in place until at least the end of 2008.

For more information about our Employment & Pensions Team please contact Jo Wort at joanna.wort@charlesrussell.co.uk

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