Jason Braier Profile picture
Nov 29, 2017 10 tweets 5 min read Twitter logo Read on Twitter
1/ Thread: The CJEU judgment in the holiday pay case of King v Sash Windows is out and is a 'must-read' for all #ukemplaw practitioners. curia.europa.eu/juris/document…
2/ As you'll know, Mr King worked for Sash Windows for 13 years and was never paid for taking annual leave. This meant some years he was reluctant to take it. #ukemplaw
3/ On retirement he brought a claim for (1) pay for holiday accrued but untaken in his final leave year; (2) pay for holiday taken throughout the 13 years; and (3) payment in lieu for accrued but untaken holiday throughout the 13 years.
4/ The ET found he was entitled to pay for each of the 3 bases of claim. The EAT allowed Sash's appeal. The CA referred 5 #ukemplaw questions to the CJEU, namely:
5/ To the first question, the CJEU focused quite heavily on the purpose behind paid annual leave being to allow relaxation and leisure, and that not paying for annual leave deters the taking of it and is incompatible with its purpose. #ukemplaw
6/ Thus to provide an effective remedy, the WTD (and hence WTR) have to be read so that a worker needs not take his leave in order to be able to bring a claim to establish entitlement to be paid for the leave. #ukemplaw
7/ The CJEU took referred questions 2-5 together, focusing on whether any limits should be placed on the accumulation of entitlement to payment for annual leave which the employment refused to pay for. #ukemplaw
8/ In the cases concerned with annual leave untaken during sickness, the CJEU placed a 15 month limit on carry-over. The CJEU explains in King that this was to protect employers and because too large a carry-over wouldn't reflect the relaxation and leisure purpose of the right.
9/ However, such a limitation is only justified when strictly necessary to safeguard the interests the derogation protects. #ukemplaw
10/ Here, the limitation is not strictly necessary given that this claim does not concern entitlement to be allowed to take annual leave (and hence have a long period of absence from work) but to be paid for annual leave that had accrued. #ukemplaw

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More from @JasonBraier

Mar 28, 2018
1/ The Court of Appeal's judgment in Secretary of State for BEIS v Parry and Trustees of the William Jones's School Foundation is fascinating for a whole host of reasons, perhaps particularly a little bit of obiter thrown in at the end bailii.org/ew/cases/EWCA/… #ukemplaw
2/ First, unusually this was an appeal brought by a non-party to the original hearing and to the EAT appeal. All parties accepted (eventually) the CA had jurisdiction. The SoS had only appealed in shock and horror at an ultra vires ruling without being added as a party.
3/ The case was a bit of a mess from the start. On the ET1 the unfair dismissal and arrears of pay boxes were ticked. In box 8.2 (the details of claim box) 'Please see attached' was written, but particulars of the wrong claim were attached. I believe the right emoji is 🤦‍♂️
Read 17 tweets
Mar 28, 2018
1/ CA judgment was handed down today in Abertawe Bro Morgannwg University Local Health Board v Morgan. It'll be the go-to case for Claimants seeking a just and equitable extension of time under the Equality Act. #ukemplaw
2/ First, the Court deals with s.123(4), dismissing an argument by the Board that the date time runs from in an omission case must also be considered the date of breach.
3/ The CA then turns to the 'just and equitable' discretion, starting by restating the well known approach to the Limitation Act s.33 factors set out in Keeble and clarified in Afolabi as not being a checklist. Leggatt considers the position more closely analogous to s.7(5) HRA.
Read 9 tweets

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