latest
technical briefing
the European Court of Justice confirmed that under the Working Time Directive, workers who are sick during a period of annual leave are entitled to take that leave at a later date which, if it cannot be rescheduled in the current leave year, may be in a subsequent leave year. This ruling has now been applied by an Employment Tribunal in the UK.
In Shah v First West Yorkshire Limited,
Mr Shah booked four weeks’ holiday from 22 February to 21 March 2009. Under his contract, his holiday year was 1 April to 31 March. After breaking his ankle in January 2009, he was absent from work from 15 January to 18 April 2009. His sickness absence therefore overlapped with his booked holiday. During his absence, Mr Shah received contractual sick pay and was also paid holiday pay for the leave he had booked. Mr Shah asked his employer whether he could reclaim his holiday but was informed that he could not do so as he returned to work in the new holiday year, and therefore the holiday had been “lost”. Mr Shah subsequently brought a claim for his loss of holiday. The Employment Tribunal considered
that, following Pereda and in order to comply with the Directive, national law must permit an employee who falls sick during a period of annual leave to take that annual leave later and, if time does not permit that leave to be taken within the current leave year, within the following leave year. The question arose whether it was permissible to construe regulation 13(9) of the WTR in such a way so as to give effect to the Directive and Pereda. The Employment Tribunal stated that
the primary health and safety purpose of regulation 13(9) is to give workers paid periods of leisure regularly throughout the year and prevent them from storing up holidays or taking lengthy periods of extended leave. It considered that adding words to the end of regulation 13(9), to cover the ‘limited and special
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Charity Finance April 2010
situation’ dealt with in Pereda, would be consistent with the underlying thrust of the legislation. The words added by the Employment Tribunal clarify that a worker who has been prevented by illness from taking holiday and returns from sick leave with insufficient time to take that leave within the relevant leave year, must be given the opportunity to take it in the following year. The Employment Tribunal therefore
upheld Mr Shah’s claim and made a declaration under the WTR that the employer had refused to allow Mr Shah to exercise his rights under the WTR by refusing to allow him to take his accrued holiday in the following leave year when he was prevented by illness from taking it in the current leave year. Whilst the decision of the Employment Tribunal is not binding on other tribunals, it provides long-awaited guidance on the interpretation of the WTR.
Louise Fernandes-Owen is a solicitor at Field Fisher Waterhouse
New guidance on events fundraising licences
When does a fundraising event become a licensable situation? It is assumed that none of the normal exemptions, for whatever reason, apply. This note can apply to any benevolent group or good cause. Voluntary associations includes sports clubs, etc. The first step is to determine if the
activity is in or out of scope of licensing. A very common fundraising activity is a “zip wire” – this is not in scope of licensing at all whereas hill walking can be in scope of licensing depending on the circumstances. If the activity is not one of the activities defined in the Adventure Activities Licensing Regulations 2004, regulation 2(1), then the regulations do not apply and no licence is needed.
Scenario 1
The provider is not paid for the session. Participants pay the charity directly. Eg the charity organises a volunteering freelancing climber to run abseiling off a school roof at a fete. Participants pay £1 per abseil to a charity representative. Outcome: not licensable. The provider
in this case is the instructor who makes the necessary arrangements for safety but does not receive payment.
Scenario 2
Participants pay a commercial provider/freelancer who forwards this money to a charity. Eg a commercial operator (not otherwise licensed) has an open day to raise money for the charity’s annual appeal. Outcome: not licensable – as long
as all money raised goes to the charity. However, if they were to hold back money (even to cover costs) it becomes a licensable situation. The provider should have evidence of receipt and payment of all monies.
Scenario 3
A charity pays a freelancing instructor to run a session for them. Participants pay the charity. Eg the charity pays an instructor to run free kayaking sessions at a ‘Festival of water’ event they are putting on to raise money. Outcome: the instructor would need to be a licence holder.
Scenario 4
The charity organises an event to raise money for its cause. It holds an annual sponsored long-distance walk over a period of up to three days. There is an entry fee to be paid by the participants. Charity volunteers provide sweeps, check-points and safety back-up. Outcome: not licensable. This
could be interpreted as a taster event to interest members of the public in the charity’s activities. But it would be
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