CONTRACT AND THE EMPLOYMENT LAW

Contract and the Employment Law



Contract and the Employment Law

Cases: Questions and Answers:

Of the steps it must take if it is to avoid liability either for breach of contract or unfair dismissal or (if relevant) under the Working Time Regulations in relation to the changes to annual leave;

There are practical reasons for distinguishing between tort and contract when deciding how a claim is to be made. The remedy for breach of duty in tort is usually a claim for damages, though equitable remedies are also available in appropriate cases. The main aim of tort is said to be compensation for harm suffered as a result of the breach of a duty fixed by law. Tort seems to place greater emphasis on wrongs of commission rather than wrongs of omission. Another important aim of tort is to deter behaviour which is likely to cause harm. The main aim of contract on the other hand is to support and enforce contractual promises, and to deter breaches of contract. Contract, then, has no difficulty compensating for wrongs of omission

In this particular case for Quintas, the employment law caveat that the reduction is only unlawful where the employee has been “unable” to take the holiday prior to the change appears quite restricting - as it seems that in many cases it will be possible to argue that workers should have, and could have, taken their accrued holiday before transferring to their new hours. Unfortunately, the ECJ did not expand on the circumstances in which an employee will be considered to have been “unable” to take leave. 

One situation where this is likely to be the case and where employees commonly negotiate a reduction in working hours is upon return from maternity leave.  The simplest way to deal with accrued holiday entitlement is to allow the employee to take it and be paid for it prior to commencing their reduced hours. However, if the employee does not take the holiday at that point, they will still be able to take it at a later date and must be paid for it at the full-time rate of pay. 

On the issue of parental leave, the decision is not as significant in the UK, as it is in Austria, since UK law only permits 13 weeks' parental leave, rather than the two years permitted in Austria. Nevertheless, it aligns parental leave with maternity leave as regards statutory holiday rights, as women going on maternity leave do not lose any accrued but untaken holiday entitlement.  Although the employment law judgment deals only with statutory holiday and not with contractual holiday, it seems that it could apply equally to contractual holiday - as the Framework Agreement on part-time work states that accrued rights should not be reduced on a move from full-time to part-time work and the Framework Agreement on parental leave protects all rights acquired when parental leave starts.

Flexible working hours have been subject to much debate and negotiations during the last two ...