Friday 21 November 2014

More County Court issues


I have previously referred to the frustration felt by many legal professionals and their clients at the current economies being driven in the civil court system, notwithstanding the fact that the civil courts continue to operate at profit and should not be expected to subsidize other parts of the system.

 

The latest incident relates to a substantial civil matter in which I am involved which is proceeding in an Essex County Court.  Some months ago a timetable was fixed progressing the case to a final trial next year and including a direction requiring both parties to file dates of availability with the court by early November to enable the final two day trial date to be fixed between late March and mid May next year.  In more complex actions where there is expert evidence it is important to have a trial date in the diary as soon as possible to ensure the availability of all key witnesses, experts and barristers, even though this still gives no guarantee that either in the days prior to the listed hearing or even on occasions when their parties’ legal teams and experts arrive at court, it will not be bounced off to another day on the basis of lack of judicial resources.  However, in this particular case I have now received a letter from the court service in response to my dates of availability which states:

 

“The Multi Track Centre are unable to list at present, as dates to avoid take the trial window into the next financial year.  We will write to the parties requesting up to date dates to avoid when the itineraries from April onwards are released”.

 

The first question that arises is why the court is making a directions order requiring parties to provide dates of non-availability to be received a time when no actual date can be allocated.  However, more significantly I find it difficult to believe that five months before the end of the financial year, the court is unable to confirm at least the minimum number of Trial Judges which will be available to deal with contested cases from April onwards enabling final trial dates to be fixed.  Is this another worrying sign that the system is grinding to a halt?

 

 

Friday 7 November 2014

Holiday pay - another challenge for employers


More fun and games following the recent decision of the Employment Appeal Tribunal in Bear Scotland Ltd v Fulton & Others. This well reported decision concerns the potential effect of overtime on the calculation of holiday pay. In particular the EAT decided that in circumstances where an employer is not required to offer overtime, but when offered the employee is required to accept it, the salary from that overtime should be reflected in the level of holiday pay received by the employee. The EAT further decided that this does not apply to unpaid overtime or to overtime which the employee is at liberty to refuse.

 A further twist is that this decision applies only to the first 4 weeks of annual leave and not any further or additional holiday. This is because the current right to a total full time holiday entitlement of 28 days derives from 2 separate provisions of which only one falls within this decision. That’s all nice and clear then!

The decision also raises questions with regard to bonuses and commission payments. It is unlikely that holiday absence would have any effect on a bonus calculation but adopting the same approach it is difficult to see how commission would not be caught, although a decision on this point has not yet been made.

The Employment Appeal Tribunal has limited retrospective claims by saying that there is a 3 month limit in making a claim although care needs to be taken if there is a series of deductions (which in most cases will be inevitable) as there will then need to be a break of more than 3 months to break the chain.

The EAT has already given leave to appeal and it is difficult to imagine that this will not go further in addition to which there remains every possibility of intervention by the Government.

 It is difficult to believe that this decision will not give further ammunition to those anti EEC’ers as this all stems from the Working Time Directive. Whilst there are some who will argue that this ensures a fairer deal for employees others will use it as a further example of European driven red tape harming business and economic growth. Unless followed by a similar decision on commission I suspect this is not as much of a problem as it has been made out to be but clearly the saga has got some way to go yet.