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by Charles Price, LLB.(hons) LLM, barrister

Pendragon Chambers,

Swansea

SA1 5RG

Tel: (01792) 411188

Fax: (01792 411189

DX 39572, Swansea

www.charlesprice.net

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Charles Price practices in Respondent and Applicant work in England and
Wales. This e-mail is for academic purposes only.

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1)Inland Revenue v Ainsworth - Long term sick and holiday payments
2)Do Offshore Oil Rig Workers Have Employment Rights in the UK ?
3)Practice Matters - Pension and statutory maternity pay calculators.
4)Dennis Wise - No Blues Over Flawed Appeal Process Decision

1)Inland Revenue v Ainsworth
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Before The Honourable Mr Justice Burton (PRESIDENT)

The case of [2002] IRLR 312 established that
even if employees have exhausted all their entitlement to contractual pay
and that their status of 'employee' is only a notional one, workers on
long-term sick leave are entitled to four weeks' paid holiday under the
Working Time Regulations 1999.

In Inland Revenue v Ainsworth, the EAT was invited to overturn Kigass (and
similar cases).

The particular facts relevant in both 'Kigass' and in this case, relate to
long term sickness when full pay and later, a form of reduced pay has been
exhausted. The employee then is not entitled to any pay at all and his staus
as employee is kept alive for compassionate reasons.

On the construction of the Regulations in Kigass by the Employment Appeal
Tribunal, such employees, albeit not entitled to be paid any sum by way of
salary for the entire year, are entitled to be paid holiday pay for four
weeks during a relevant year, at a rate calculated in accordance with
statute The cases considered in Kigass included a claim to such entitlement
under Regulation 14, which relates to the recovery of holiday pay after
termination of employment.

Mr Underhill QC representing the Revenue, argued that an employee cannot
take 'leave', without being in a position to work. The President considered
this argument to be convincing and found further support in conclusuions
made in List Design Group Ltd -v- Douglas for the argument that the decision
in Kigass should be overturned. In List Design Group Ltd -v- Douglas 2002
ICR 686 (although the case does not relate to people on long term sick
leave), the conclusion of the Appeal Tribunal in that case was that there
was no requirement that leave be actually taken.

If Kigass is to be changed the Chairman believed that it must be be done by
the Court of Appeal or it may be that this whole question can only be
resolved by legislation: 'The cases before us are all Regulation 14 cases,
as we have indicated. It is in our view essential that the Court of Appeal
will consider Regulation 13 also, in that context. It appears to us
impossible, subject to any view of the Court of Appeal itself, to resolve
questions on Regulation 14 without also considering and deciding the same
issue in respect of Regulation 13'.

Mr Underhill QC stated in discussion with the Chairman that he knew of cases
proceeding under Regulation 13 and therefore it can be assumed that this
matter will be dealt with promptly.

Relevant Regulations:

Regulation 13 reads in material part as follows:

(1) a worker is entitled to four weeks’ annual leave in each leave year….

(9) Leave, to which a worker is entitled under this regulation may be taken
in instalments, but

(a) it may only be taken in the leave year in respect of which it is due,
and
(b) it may not be replaced by a payment in lieu except where the worker’s
employment is terminated.

14 Compensation related to entitlement to leave

(1) This regulation applies where -

(a) a worker’s employment is terminated during the course of his leave year,
and
(b) on the date on which the termination takes effect ('the termination
date') the proportion he has taken of the leave to which he is entitled in
the leave year under [regulation 13] differs from the proportion of the
leave year which has expired.

(2) Where the proportion of leave taken by the worker is less than the
proportion of the leave year which has expired, his employer shall make him
a payment in lieu of leave in accordance with paragraph (3).

(3) The payment due under paragraph (2) shall be..'

And then the calculation is there set out.

http://www.employmentappeals.gov.uk/uploads/UKEAT65003UKEAT74503UKEAT79803UK
EAT90103422004/index.htm

2)Do Offshore Oil Rig Workers Have Employment Rights in the UK ?
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When broaching the issue of jurisdiction in offshore employment disputes the
‘Employment Relations (Offshore Employment) Order 2002’ must be considered.
Under Article 3 it states that in England and Wales, the employment
tribunals shall have jurisdiction to determine complaints or appeals arising
in connection with Part X of the Employment Rights Act 1996 (unfair
dismissal claims) from acts or omissions taking place ‘in the English area’.
The ‘English area’ is defined in the Civil Jurisdiction (Offshore
Activities) Order 1987 as, ‘such of the offshore area adjacent to England
and Wales which lies to the south of the Scottish border and east of the
Northern Irish border together with the internal waters of England and Wales
in so far as they are tidal or constitute parts of the sea.’

The provisions of the ERA 1996 also apply to offshore employment disputes
for the purposes of activities:

a) in the territorial waters of the United Kingdom (other than an area or
part of an area to which the law of Northern Ireland applies);
b) connected with the exploration of the sea-bed or its subsoil, or the
exploration or exploitation of their natural resources, in the United
Kingdom sector of the continental shelf (other than an area to which the law
of Northern Ireland applies). The UK sector of the continental shelf is
defined under section 1(7) of the Continental Shelf Act 1964 as an area ‘Her
Majesty may from time to time by Order in Council designate.’ The boundaries
of the ‘UKCS’ have been moved regularly and can be seen on the Department of
Trade and Industry Web site at:

http://www.og.dti.gov.uk/information/bb_updates/maps/Designations.jpg

OR;
c) in the foreign sector of the Continental shelf connected with the
exploration or exploitation of the Frigg Gas Field, where the employer is –
1) a company registered under the Companies Act 1985,
2) an overseas company which has an established place of business within
Great Britain from which it directs its activities in question, or
3) any other person who has a place of business within Great Britain from
which he directs the activities in question.
The same provisions do not apply to or in relation to any employment wholly
or mainly for the purposes of any activities connected with the Ekofisk
Field.

OIL RIGS would be involved in the exploitation of exploitation of natural
resources but the location of this work is vitally important when
determining whether English and Welsh tribunals have jurisdiction to hear a
claim under Part X of the Employment Rights Act 1996.

Claims in Another Civil Court - Application of English, Scottish and
Northern Irish Law
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The Civil Jurisdiction (Offshore Activities) Order 1987 Statutory Instrument
1987 No. 2197 dictates under Section 2(a) that the law in force in England
and Wales shall apply for the determination of questions arising out of
relevant acts taking place in the English area;

The ‘English area’ is defined in the Civil Jurisdiction (Offshore
Activities) Order 1987 as, ‘such of the offshore area adjacent to England
and Wales which lies to the south of the Scottish border and east of the
Northern Irish border together with the internal waters of England and Wales
in so far as they are tidal or constitute parts of the sea.’

3)Practice Matters
------------------

An online Statutory Maternity Pay calculator and pension calculator can now
be found on my website www.charlesprice.net

4)Dennis Wise v Leicester City Football Club
--------------------------------------------

(24th February 2004, HHJ Peter Clark)

Dennis Wise was dismissed from Leicester City FC following a fight with a
teammate, whilst on a pre-season tour to Finland The original disciplinary
hearing held before the football club's chairman was held to be unfair. The
contract also provided for a 2-stage appeal process. The first stage appeal
is to the Football League Disciplinary Committee (FDC); the second is to the
Football League Appeals Committee (FLAC).

Procedural defects at the dismissal stage will only be cured on appeal where
the appeal proceeds by way of a rehearing. A review of the original
decision to dismiss will not suffice to cure the earlier procedural
failings: see Whitbread v Mills [1988] IRLR 501. They held that the
first-tier appeal, since it did not uphold the original decision, was not
capable of curing its procedural defects. The second-tier appeal, being a
review hearing only, was likewise not capable of curing the procedural
defects of the original hearing. Accordingly the dismissal was unfair.

http://www.employmentappeals.gov.uk/uploads/UKEAT66003922004/index.htm

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Charlie Price has held the positions of Head of Employment Law at both
Sheffield and Bristol City Councils and practises in employment and personal
injury law across England and Wales.
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