Stringer and others v Her Majesty's Revenue and Customs

[smouse]

I see the ECJ have now made a decision on this does anyone know if this now means you can claim holiday pay when you are long term sick

[TCL-MUMPING]

Is this a quiz question....?

[TCL-MUMPING]

From Personneltoday.com "The ECJ's judgment does not fit with key provisions of the UK's existing Working Time Regulations (WTR). Under the WTR, the premise is simple: use it or lose. This means that workers who do not use their full statutory holiday entitlement in the current holiday year, are not permitted to carry it forward. The House of Lords will have to deal with this issue when the case returns there for its final conclusion. It is likely to find that the ECJ's judgment prevails over the WTR."

[smouse]

presume that means it isnt reversed back to what it was yet then
and no it isnt a quiz question its a serious issue for us

[buildersmate]

Correct in that respect.
As I understand it, such ECJ findings are binding on the UK but specific law is made by the UK. What now has to happen is the Government has to consider the verdict and work out how to change UK legislation to amend UK law so it fits the judgement. It will take several months.
That's what happened with the Human Rights drivel.

[smouse]

Thanks
This has been going on for 4 years so guess a few more months wont matter.
I'll just keep my fingers crossed
Hubby is severely disabled and will never work again but his boss insists on keeping him on his books and for the first 2 years we claimed holiday pay which really annoyed him so maybe if he thought he would have to pay 4 years back holiday pay and continue to pay it he might retire him on ill health and give us the 12 weeks pay we would be entitled to - not a lot to ask after 32 years

[Dolly1308]

If one is not working due to ill-health and getting paid ,why do you think you are entitled to holiday pay as well?

[smouse]

Because we are NOT getting paid other than government sick pay
He hasnt paid my husband for the last 4 years once he stopped paying sick pay. He has closed 4 shops and there would be no job for him if he could go back so keeping him on his books just stops him paying him anything

[buildersmate]

That's an interesting angle and I see why you are keen on it.
But new legislation is not typically retrospectively applied.

[smouse]

It sure is. My hubby was service manager but everyone under him has been made redundant and they no longer do any repairs lol

[buildersmate]

On another tack, have you been down all other options? I guess what you are saying is you don't actually want the holiday pay - you want to force the issue to dismiss on grounds of capability (long term sickness is such a valid reason)?

Have you been down the route of threatening to resign and asserting that you will take the employer to Employment Tribunal as a constructive dismissal (because he will not release you from the contract - when there is no realistic proposal of ever continuing with the employment). I don't know if this could work - you would need to try and get 30mins free with a solicitor via CAB or wherever. Just exploring ideas.

[buildersmate]

Your reply just above appeared whilst I was typing. You are right - it would be better to get the issue forced over the need for the employer to dismiss on grounds of redundancy. Have you checked this out properly?

[buildersmate]

More questions. Are you saying that the employer closed a site and made everyone at the site redundant EXCEPT your husband who was on long term sick? - and who is continues to be technically an employee?

[smouse]

You've got it. They no longer do repairs, no longer have a service department but claimed that is job is still there when we asked if he would be made redundant too

They know he wont go back as our doctor sent a letter to say he should be finished on ill health as he will never be able to work again

Believe it or not what he is doing is quite legal and he can just keep him on the book indefinitely

[Dolly1308]

So ,his employer is trying to avoid paying him redundancy money -is there not a union to help him ?

[smouse]

No I am afraid not
One day hopefully we'll get the upper hand

[bednobs]

i dont really understand why your husband dosent just hand his notice in?

[smouse]

Why should he
dont you think after working for him for 32 years a decent boss would give him 12 weeks pay and let him go that way

[bednobs]

I see what you are sayng, and i didnt quite understand the bit about 3 months pay (i never knew you had to get that if you were retired on ill health grounds (!) .... but it's been 4 years and clearly he isnt a decent boss. Won't your husband be able to getother benefits if he isnt still "employed" that will be more lucrative than hanging on for another x amount of years for 12 weeks worth of pay?

[smouse]

12 weeks pay is in his contract

in our situation there is nothing to gain by not being employed - maybe he'll get his gold watch lol

[buildersmate]

OK - just got back on the case.
Are you SURE about the facts on the potential for redundancy 2 years ago? - as in you checked it with ACAS, CAB or wherever.
Did he get a letter from employer when all this happened? - if so, what did it say? - perhaps something like 'Dear XX, following closure of the site, I am not making your redundant but I am redeploying you to another part of the company. Clearly this isn't going to happen until you are fit enough to start work again at which time I will discuss with you the options for your work'.
If he didn't do something like this, I'm not sure, but I suspect your husband should have been able to claim that actually he WAS redundant - and hence entitled to payment in lieu of notice, or notice of termination of contract.
I'm not sure and want more time to check it - and the passage of time since may have altered things.
One last thing - did everyone else at the time of the redundancies get paid money in lieu of notice OR were they forced to work their notice? - it may make a difference.
A very interesting case - I've never heard the likes of it before.