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Yes, reaffirmed the ECJ in Sobczyszyn v Skola Podstawowa w Rzeplinie, in a case which doesn't really say anything new.
Ms Sobczyszyn, a teacher, took convalescence leave provided by a Teachers' Charter and was unable to use her annual leave. The school said that leave had been used during convalescence. A reference was made to the ECJ on the compatibility of the domestic Polish Teachers' Charter with the Working Time Directive 2003/88/EC.
Article 7(1) provides four weeks' annual leave for every worker which is a fundamental tenet of EU social law. Only on termination can payment be made in lieu. Annual leave accrues during sick leave, Stringer. If scheduled leave coincides with sickness, a worker can designate a different time to take leave, Pereda. The purpose of paid leave is rest and relaxation. Sick leave is for recovery from illness, it is not rest; annual leave can be rescheduled on recovery, ANGED.
Whether leave has been scheduled or booked makes no difference: if sickness prevents annual leave, workers must be able to use annual leave at a later date.
No, held the Court of Appeal in the case of Blackwood v Birmingham & Solihull Mental Health NHS Trust.
The Claimant was assigned a work placement with the Defendant Trust as part of her University Course in Mental Health nursing. She was not able to work the shift pattern offered because of her childcare commitments, and her placement was withdrawn.
The Claimant brought a claim against the Trust in the employment tribunal, relying on section 55 of the Equality Act, but the employment tribunal dismissed the claim on the basis that it was precluded by section 56(5), which, in summary, was thought to prevent claims being brought by students of universities (et al) in relation to training to which their university had the power to afford access, even where no claim could in fact be made against the university.
The Court of Appeal held that section 56(5) needed to be interpreted in line with the EU Directive, reading into the subsection that a claim could not be brought in the employment tribunal against an education service provider concerning training for university students but only "to the extent that the student is entitled under [section 91] to make a claim as regards that discrimination."
Thus a lacuna in the law was removed in that if a Claimant cannot, in the circumstances, bring a claim against the university arranging the vocational training under section 91 Equality Act (in the County Court), she is now entitled to bring a claim against the training provider in the employment tribunal.
Does abuse of migrant domestic workers, on grounds of their status as vulnerable migrants, amount to unlawful discrimination?
No, held the Supreme Court in an important judgment (Taiwo v Olaigbe and another and Onu v Akwiwu and another) handed down this morning.
Two Nigerian nationals, both in the UK under domestic migrant visas, were mistreated and abused by their employers (see paras 3, 4 and 8 of the judgment for the description of how they were treated). After escaping, they brought successful claims under the minimum wage (and other similar) legislation. They also sought compensation under the Equality Act, asserting they had been directly or indirectly discriminated against on grounds of their nationality.
The Supreme Court disagreed. It was not direct discrimination because the mistreatment was due to their vulnerable migrant status, not because of their nationality. Nor was it indirect discrimination, because there was no ‘provision, criterion or practice’ applied by the employers to their employees.
Baroness Hale suggested, in a concluding paragraph, that Parliament might consider whether employment tribunals ought to be given jurisdiction to award compensation under section 8 of the Modern Slavery Act to grant recompense for ill-treatment meted out to vulnerable migrant workers.
Yes, held the Court of Appeal in Secretary of State for Justice v Windle and Arada.
The Claimants were professional interpreters who provided work for HMCTS on a case-by-case basis. They were self-employed for tax purposes and did not receive holiday or sick pay.
Proceedings were brought against the MoJ for racial discrimination. The employment tribunal dismissed the claims on the basis that the Claimants were not employees for the purposes of the Equality Act 2010. Citing Quashie v Stringfellows, the employment tribunal considered that it was relevant that there was no obligation on the Claimants to accept any assignment, and thus there was no mutuality of obligation.
The EAT disagreed, finding that the absence of mutuality of obligation was only relevant in considering whether a contract of employment existed, and was irrelevant to whether there was a “contract personally to do work” as specified by the Act.
Restoring the employment tribunal’s decision, the Court of Appeal found that, despite the fact that demonstrating mutuality of obligation between parties was not a pre-condition for the definition of 'employment' under the Equality Act, it was a factor capable of shedding light on the nature of the relationship.