This week we are looking at two recent cases. The first looks at how long a sick worker is able to carry over unused holiday, and the second case looks at what employers can do to prevent multiple vexatious claims being brought by disgruntled ex-employees.
1. For how long can holiday be carried over?
This question was recently considered in the case of Plumb v Duncan Print Group.
Carrying over holiday entitlement:
The Working Time Regulations 1998 (“WTR”) specified that any accrued annual leave needed to be taken in the leave year in which accrued, and that therefore without agreement to the contrary, holiday leave could not be carried over into the next leave year.
Subsequent cases in the European Court of Justice held however that workers who do not wish to take their holiday entitlement during a period of sick leave can carry over unused holiday into the following year, but that unlimited carry-over was not permitted. This lead to a re-interpretation of the WTR by the UK courts in NHS Leeds v Larner, recognising that holiday could be carried over where a worker was unable or unwilling to take it because he was on sick leave.
Left undecided however was whether a sick worker had to demonstrate they were medically unable to take annual leave because of a medical condition before being allowed to decide to roll their holiday over, and over what period of time holiday entitlement could be carried over.
In Plumb v Duncan Print, the Employment Appeal Tribunal held that any carried over holiday must be taken within 18 months of the leave year in which it was accrued. It also established that sick workers do not have to prove they were unable to take holiday before being allowed to roll it over to the next year and that they can simply chose not to take holiday and to roll it over.
This decision will be a welcome clarification for employers, although it may not yet be the end of the story as both parties have appealed to the Court of Appeal.
2. How do you prevent vexatious claims?
What can an employer do if a disgruntled employee keeps bringing claims against it? Does the employer have to keep fighting every case that is brought?
The case of Nursing & Midwifery Council v Harrold involved a former nurse who had been dismissed and struck off the Nursing Register. Angry at her treatment, Ms Harrold brought numerous claims against her ex-employer in both the Employment Tribunals and the County Courts. Although they were all unsuccessful, the cost and time involved in dealing with these cases led the Nursing and Midwifery Council to apply for a Civil Restraining Order (CRO) to stop Ms Harrold from bringing any further vexatious claims against them. The CRO was granted by the High Court.
Undeterred, Ms Harrold argued that, as the CRO derived its authority from the s 3.11 of the Civil Procedure Rules, it could only prevent her from bringing claims in the County and High Court - she should still be free to bring claims in the Employment Tribunal.
The High Court disagreed. The High Court has the power to bind inferior courts (like Employment Tribunals) where it assists the administration of justice and where there is no conflict of powers between the two. The Court held that preventing vexatious claims was in the interests of justice, and Employment Tribunals do not have the power to make CRO’s themselves so there was no conflict between them. As a result, it was held the CRO did apply to Employment Tribunal claims as well as County and High Court claims.
Although this was an extreme case it is comforting to know that there are tools that the employer can use to prevent repeated vexatious claims.
For more information on anything in this article or to find out more about what the Employment Team can offer please contact the employment group on 0118 952 7284 or email [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.