1. ECJ decision - An Employer's Right to Insist on Overtime
2. ECJ Advocate General Opinion - 13 week rule for holiday entitlement unlawful
________________________________________1. ECJ - An Employer's Right to Insist on Overtime
The ECJ this morning gave its decision in Wolfgang Lange v Georg Schunemann GmbH,
a case referred by the German national courts.
Mr Lange was dismissed because he refused to work overtime. There was a dispute of fact over what had been agreed - however, the national court referred three questions to the ECJ for a ruling.
1. Are employers OBLIGED to state in the statement of terms and conditions that an employee may be required to work overtime?
Answer: Yes. Directive 91/533 sets out the employer's obligations to inform employees of the conditions applicable to the contract or employment relationship. Although a right to insist on overtime does not fall within the requirement to inform an employee of the length of their normal working week (since overtime, by definition, is not part of the normal working week), it does fall within the obligation to notify employees of "the essential elements of the contract of employment relationship", because an obligation to work overtime is an essential element of the employment relationship. NOTE
: UK Law probably complies with this already under ERA 1996, s1(4)(c).
2. If the employer does NOT set out the obligation to work overtime in writing, does it nullify the obligation? In other words, is the contract does not mention overtime, is the employee in breach of contract if s/he refuses to work overtime.
Answer: No. If the employee has agreed to work overtime (eg verbally or by conduct), and for some reason it has not been reduced to writing, this does NOT render the contractual term void.
3. If the employer does not provide a written statement containing the obligation to work overtime, and is therefore in breach of the law, is the employer deemed to be obstructing the proper taking of evidence (which has consequences in German law)?
Answer: No (this isn't really relevant to UK law!)
The decision is at http://europa.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79989791C19990350&doc=T&ouvert=T&seance=ARRET&where=()
________________________________________ 2. ECJ - 13 week rule for holiday entitlement unlawful
The Advocate-General has this morning handed down his opinion in BECTU v UK.
It is common knowledge that regulation 13(7) provides that workers do not acquire the right to 4 weeks' annual paid leave until they have been working for 13 weeks.
BECTU (the Broadcastin, Entertainment, Cinematographic and Theatre Union) has 30,000 members in the broadcasting, film and theatre sector - many of whom work under very short contracts and thus do not acquire the right to paid holiday. They brought a claim in the High Court seeking a declaration that regulation 13(7) was incompatible with the Working Time Directive.
They also sought clarification of whether, once the 13 week period had elapsed, that 13 weeks was to be taken into account when calculating how much paid leave the worker was entitled to.
The Advocate-General, in a very clear and forceful opinion, has stated that the 13-week qualification period is unlawful. The right to paid holiday is "an automatic and unconditional right granted to every worker
.". There is no provision within the Directive to make it subject to any qualification period. The Directive "precludes national legislation under which a worker does not begin to accrue rights to the paid annual leave...until he has completed a qualifying period of employment with the same employer even if, once that qualifying period has been completed, his employment during the qualifying period is taken into account for the purpose of computing his leave entitlement."
The opinion is at http://europa.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79989791C19990173&doc=T&ouvert=T&seance=CONCL&where=()