1. Khan v Martin McColl (Holiday Pay and Sickness Leave)
2. Celebi v Scolarest Compass Group UK (Disciplinary Procedure - Allegation of Dishonesty)
3. Simpson v Endsleigh Insurance Services (Maternity Leave - Suitable Vacancies)

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1. Khan v Martin McColl [2010]

Holiday Pay and Sickness Leave

The present authority on holiday leave is the case of Stringer and others v HMRC [2009] which confirmed that workers on sick leave can accrue holiday rights and carry over holiday leave to the following year.

The case of Khan v McColl raised a different issue.

Mr Khan’s employment was transferred to Martin McColl in 2007 by way of a “TUPE” transfer. McColl guaranteed that all transferring employees would retain any holiday entitlement that was not used before the date of transfer. Mr Khan had 2 weeks unused holiday leave. He was therefore entitled to 6 weeks leave in 2008. Mr Khan did not take any holidays but went on long term sick in May 2008. He resigned in August 2009. On termination he was paid all holiday leave that had accrued in 2009 only.

Mr Khan lodged a claim of unlawful deduction from wages. The employer argued that since holiday for 2008 should have been paid at the end of that year and 2009 holidays were paid, there was no series of deductions and therefore his claim was out of time.

The Tribunal preferred this argument and decided that the claim was out of time as the claims referred to holiday leave in 2007 & 2008.

Although this is an Employment Tribunal decision and therefore not binding on other tribunals it is interesting for the following reasons:

1. A claim for holiday pay from a worker under Stringer who has been absent on long term sick may fail if the worker has failed to request to take his holiday during the relevant holiday year.
2. If workers leave following lengthy periods of long term sick leave then employers should consider paying them in lieu of holiday accrued during the final leave year in order to break the series of deductions.

The case did not reference whether Stringer is binding on the private as well as the public sector.

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2. Celebi v Scolarest Compass Group UK and Ireland UKEAT/0032/10LA

Disciplinary Procedure - Allegation of Dishonesty

This recent decision (16 September 2010) related to the fairness of a disciplinary procedure.

The Claimant was a chef manager. She placed £3,400 takings into a bag and sent it by courier to the bank. In delivery it was found only to contain £400. The Claimant was suspended pending an investigation into ‘loss of £3,000 cash banking/inaccuracy in banking’. She was then invited to a disciplinary hearing in respect of the allegations:

* Incorrect reporting of stock figures
* Following of financial procedures
* Discrepancies in banking

The Claimant was dismissed for the reasons set out above. However the dismissing officer stated that the reason for dismissal was a reasonable belief that the sum of £3,000 had been stolen and the Tribunal made their decision based on that.

The EAT held that where a specific allegation of dishonesty was not put to the employee, the dismissal was unfair.

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3. Simpson v Endsleigh Insurance Services, Wood, Thompson, Cotton (UKEAT/0544/09/DA)

Maternity Leave - Suitable Vacancies

When a woman on maternity leave is made redundant she must be offered any suitable alternative position that exists with him or any associated employer.

Regulation 10 (3) of the Maternity and Parental Leave Regulations (NI) 1999 (as amended) states that suitable posts must be:
(a) Suitable and appropriate and
(b) The terms and conditions must not be substantially less favourable than her previous terms.

These terms must be read together.

The Claimant was not offered a post. The Respondent contended that whilst a post existed which was suitable and appropriate it did not satisfy 10 (b) above as it was a seven shift pattern and the Claimant worked Mon-Fri.

The Tribunal found that the post was not suitable or appropriate and its terms were substantially different. The Claimant appealed contending that the Tribunal had been wrong in contending that both parts of Regulation 10 should be satisfied.

The EAT agreed with the Tribunal. It is a not a two part test, (a) and (b) must be treated together.