Managing employees/workers
The European Court of Justice ruled in April 2010 that workers who take parental leave cannot, after the leave, be deprived of their annual leave entitlement accumulated during the year preceding the birth of their child. The judgment also deals with the rights of part-time and fixed-term workers.
This week's case of the week, provided by DLA Piper, covers an injunction against a disciplinary hearing.
Richard Ryan, associate, Helen Ward, associate, and Tori O'Neil, trainee solicitor, Addleshaw Goddard, detail the latest rulings.
The Employment Appeal Tribunal has held that it will only rarely be unfair for an employer to proceed with a disciplinary hearing prior to holding a related grievance appeal hearing.
In Parkwood Leisure Ltd v Alemo-Herron and others [2010] EWCA Civ 24 CA, the Court of Appeal held that, where the transfer of an undertaking occurs, and the transferring employees' contracts contain a clause referring to a collective agreement between the transferor and the relevant union, the transferee is not obliged to recognise wage increases agreed by the transferor and the union after the transfer has occurred resulting from negotiations to which the transferee was not a party.
In Lyons v Mitie Security Ltd EAT/0081/09, the EAT held that, in principle, the ability to take annual leave is not inalienable and can be lost if the worker does not comply with the notice requirements imposed by the Working Time Regulations 1998 and/or the worker's contract. However, the tribunal had erred in failing to analyse properly whether or not the particular notice requirements of the claimant's contract had been complied with, before deciding to dismiss his constructive dismissal and holiday pay claims.
In Muschett v HM Prison Service [2010] EWCA Civ 25 CA, the Court of Appeal held that an agency worker had neither a contract of employment nor a contract with the end user personally to carry out work. Accordingly, he could not bring complaints of unfair or wrongful dismissal, or of unlawful discrimination, against the end user.
In Unison v Somerset County Council and others EAT/0043/09, the EAT held that the employees "affected by" a TUPE transfer for the purposes of consultation with employee representatives were those who would or might be transferred, those whose job is jeopardised by the proposed transfer, and those with internal job applications pending. The definition did not extend to those who might in the future apply for a vacancy in the part of the undertaking transferred.
In Dansie v Commissioner of Police for the Metropolis EAT/0234/09, the EAT held that a police force did not treat a male trainee officer less favourably on grounds of sex by requiring him to have his hair cut, when the same requirement would not have been demanded of a female officer with a similar hairstyle.
In Autoclenz Ltd v Belcher and others [2010] IRLR 70 CA, the Court of Appeal held that a group of car valeters were employees, despite the fact that their written contracts with the valeting company stated that they were independent contractors, and contained clauses allowing "substitution of labour" and the "right to refuse work".
Employment law cases: HR and legal information and guidance relating to managing employees/workers.