NI Tribunal Decisions: Holiday Pay During Sickness and Vicarious Liability

The cases we are concerned with today cover accrual of holiday entitlement during sickness; and the steps that might have been taken for an employer to avoid vicarious liability for a bullying/harassment campaign against an employee.

Martin Connolly v Countrywide Freight Group Ltd NIIT Case Ref: 1196/11

This employee brought a claim for disability discrimination and failure to pay holiday pay. He had been employed from 24 August 2006 as a Driver/Loader. The Claimant sustained an injury to his back in October 2008 and reported sick for work. He was signed off as unfit for work from this time until the termination of his employment on 14 March 2011. The company paid him for annual leave accrued but not taken in the year to 14 March 2011. The Claimant’s claim to the Tribunal was for payment for holidays accrued during his previous holiday years when he was off sick. He relied on the Stringer v HMRC decision.

The Tribunal considered the recent authorities on Stringer v HMRC [2009] ICR 932 and stated that the right to annual leave continues to accrue during sick leave and “the right to paid annual leave conferred by Directive 2003/88 on all workers... cannot be made subject by a Member State to a condition concerning the obligation actually to have worked during the leave year laid down by that State.”

In a recent decision in 2001 NHS Leeds v Larner [UKEAT/0088/11/CEA] the issue before the EAT was if the worker does not submit a request for annual leave before the leave year ends, does the worker forfeit the entitlement? In that case, Mr Justice Bean accepted the submission made by the Claimant’s Counsel on the meaning of Regulation 15 that Regulation 15(1) does not say a worker may “only” take leave to which he is entitled after giving notice under Regulation 15(1). That case referred to the Pereda v Madrid Movilidad SA [2009] IRLR 959 where he quoted that:

“the right to paid annual leave is not extinguished at the end of the reference period laid down by national law where the worker was on sick leave for the whole or part of the leave year and has not actually had the opportunity to exercise that right.

The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill”.

The conclusion was the Regulation 15(1) was not mandatory. In other words, you do not lose the right to annual leave by your failure to request it. The decision of Frazer v South West London St George’s Mental Health Trust [UKEAT/0456/10/DA] was also considered, which stated that the Claimant’s entitlement to holiday pay “depended on her having given proper notice under Regulation 15 of her intention to take annual leave”.

The Tribunal in this decision found that the Frazer decision raised a number of difficulties e.g. the Trust might have been obliged to accede to a request for annual leave accrued in earlier years following her recovery and also referred to the situation of someone who is on long term sick and does not make a request for their leave entitlement in the actual leave year but who then has their employment terminated by reason of their absence and they could neither be entitled to their holidays nor to payment in lieu. It stated “after some consideration and bearing in mind that the Tribunal is not bound by the decisions of the Employment Appeal Tribunal although, of course, they have considerable weight, we consider that the better approach is that adopted by Mr Justice Bean in the Larner case. It is our view that Regulation 15 is not to be read in a mandatory manner but in a permissive manner. If Regulation 15 is complied with, in that Regulation 15(1) notice is made and the employer fails to give a counter-notice then this will guarantee the employee can take leave at the specified time.”

The Tribunal also went on to state that if they were wrong in this that they could distinguish Frazer on two points. In Frazer, there was no evidence that the Claimant was unable to take leave during the appropriate period yet in this case Mr Connolly could not seek to avail of his holidays at the relevant time because of his sickness.

Furthermore, the employers in this case did not follow the regulations themselves in their general approach to the granting of holidays. They applied their own provisions in relation to the granting of holidays including retrospective permissions.

Therefore the Tribunal determined that the Claimant, Mr Martin Connolly, was entitled to holiday pay for the years 2008, 2009 and 2010 and the Respondent was ordered to pay £3,785.25.

Louis McGettigan v Short Brothers plc 2001 NICty 4

This case dealt with the issue of employer’s liability under the Protection from Harassment (Northern Ireland) Order 1997 and the vicarious liability of Short Brothers plc for harassment in the course of employment.

The employee was a 56-year-old man whose religion was Catholic and he was raised and still lives in West Belfast. He was employed by the Defendant as an Aircraft Fitter for around 24 years. It was his case that in the Spring of 2005 another employee of the Defendant subjected him to harassment via text messages during working hours making threats. The text messages were threatening and sectarian in content. The receipt of the text messages was reported to the Line Manager and the Plaintiff and the other employee were interviewed by the police at the employer’s premises and this was relatively public.

There were no steps taken by the company during this period in respect of any internal investigation or risk assessment or policy. No one from either Human Resources or the company’s ostensibly sophisticated security team accessed even the most basic employment records for the names put forward by the Plaintiff and other members of staff as a possible suspect or line of enquiry.

It was conceded in evidence that it is likely that Lead Hands on various work sections have current mobile phone numbers which they use to access employees for short notice sickness cover or overtime. These were not sought or checked.

The Defendant has policies on bullying. However, no aspect of the procedures set out in the policy document was implemented. No announcement was made to the effect that there was reason to believe unpleasant or intimidating text messages had been received within the workforce and the Defendant company did not make any announcement on notice boards or elsewhere to the effect that such conduct would be dealt with as a serious disciplinary matter and/or that the Company would actively promote prosecution.

There were further text messages received of an intimidatory and threatening manner by the Plaintiff and colleagues which caused the Plaintiff further alarm and he wrote to the Chief Executive and copied in the Head of Equal Opportunities, setting out the history and stating that “the company’s lack of action to combat and handle the matter is now putting my own personal safety at great risk. I have little belief that this problem will resolve itself. The time that I am taken to help police enquiries is time off work, off the shop floor and now other employees seem to know what it is about. This makes things worse for myself and others concerned. I feel saddened that I have to make this formal complaint and with the way the company is handling this matter. I have been an employee of this company for 20 happy, hassle-free years and I hoped that the rest of my working years would follow this trend. It is distressing that a few individuals have the power and ability to ruin a place in which I have so many good friends.”

The Head of Security wrote to the Plaintiff at his house and the letter was opened by the Plaintiff’s wife and stated that “the Company was not involved in the investigation and had no information to give to you”. The Court held that the letter was singularly unsupportive of the Plaintiff as an employee of 20 years and that the tone of the correspondence could only have made him feel isolated and expendable.

The Plaintiff was signed off on sickness leave on 17 March 2008 with post-traumatic anxiety state and a Consultant Psychiatrist confirmed that “the initial trauma being the threatening text messages, in my opinion his symptoms have been perpetuated and exacerbated by his perception of the failure of his employer to take action to investigate, identify and abolish this harassment”.

The Court relying on the Majrowski v Guy’s & St Thomas 2006 UK HL 34 and the Sunderland CC v Conn [2008] IRLR 324 which stated that in order to constitute harassment at all the conduct must be sufficiently serious to be potentially criminal. Therefore in applying this test the Court held that the text messages were sufficient in number and content to pass the threshold in respect of torment of the victim which was sustained criminal liability and they were both oppressive and unacceptable.

They also held that Shorts were vicariously liable and that the Plaintiff, in this case, should be awarded special damages of £500 and entered a decree in favour of the Plaintiff in the sum of £11,500.