Carrying Over Holiday Pay When Sick

Claire Darwin

This piece was orginally posted on Daniel Barnett’s employment law bulletin, and is reposted here with thanks.

The hard-working judges in the CJEU have yesterday, in KHS AG v Schulte (C-214/10) handed down a judgment which casts doubt on whether a holiday taken pursuant to the Working Time Directive should involve mere relaxation and leisure.

It is now long established that workers on long-term sick leave accumulate holiday (Stringer v HMRC (C-350/06)). However in Schulte the CJEU confirmed that this right is not without limits, and that to allow workers to accumulate unlimited amounts of holiday entitlement, or pay in lieu, does not reflect the purpose of Article 7 of the Working Time Directive. Whilst many of us might disagree with this, the CJEU held that holiday taken after a certain point in time ceases to provide a rest from work, and becomes “merely a period of relaxation and leisure”. They held that a holiday which involves mere relaxation and leisure, but does not provide a worker with a rest from work, is not consistent with the aim of Article 7 of the Working Time Directive.

Continue reading

Case Comment: O’Brien v MoJ [2010] UKSC 34, Opinion of Advocate General Kokott (C-393/10)

Claire Darwin

This post was originally posted on the UKSC Blog, and is reposted here with thanks.

In August 2010, the Supreme Court unanimously referred the appeal of Mr O’Brien QC, a former fee-paid part-time Judge who is seeking retrospective admission to the Judicial Pension scheme, to the Court of Justice of the European Union. See the case preview here.

On the 17th November 2011, Advocate General Kokott handed down her opinion.


O’Brien and others argue that the specific exclusion of part-time judges paid a daily fee from the protection of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is incompatible with the Part-Time Workers Framework Directive (97/81/EC) (“the Framework Directive”), and that the 2000 Regulations have not properly implemented the Directive into UK law. The Directive was intended to give effect to the Framework Agreement on Part-time Work (“the Framework Agreement”).

The Supreme Court referred the following questions to the Court of Justice:

(1) Is it for national law to determine whether or not judges as a whole are workers within the meaning of the Framework Agreement, or is there a Community norm by which this matter must be determined?

(2) If judges as a whole are workers within the Framework Agreement, is it permissible for national law to discriminate (a) between full-time and part-time judges, or (b) between different kinds of part-time judges in the provision of pensions?

The Opinion

In respect of question 1, the view of AG Kokott was that whilst it is generally for national law to determine the meaning of the term “worker”, there is a limit on a Member State’s discretion to do so. Whilst the CJEU will not interfere if a Member State defines the term “worker” very broadly, a Member State cannot be permitted to narrowly define the term “worker” so as to arbitrarily exclude a certain category of persons from the protection of the Framework Agreement and the Directive.

Continue reading

House of Lords in favour of language tests for doctors

Claire Darwin

Just as EUtopia predicted, it is looking increasingly likely that the controversy over language tests for doctors and nurses will result in an EU legal challenge. Today, the House of Lords European Union Select Committee has published a report criticising  the Mutual Recognition of Professional Qualifications Directive, and claiming that the requirements currently contained in the Directive are not sufficient. The Committee claim that the Directive strikes the wrong balance between allowing  healthcare professionals to work in other EU countries and ensuring the safety of patients. Further, the Committee has recommended that the GMC, Nursing and Midwifery Council, General Dental Council and General Pharmaceutical Council should be allowed to test the language skills of all non-UK applicants. The full report is available here.

No EU Law Controversy regarding GMC Proposals – Yet!

Claire Darwin

Is medicine practised differently in the UK than in other countries? The GMC, in their first ever report on The State of Medical Education and Practice 2011, appear to think so. Further, the GMC concluded that many overseas doctors have problems adjusting to the cultural, ethical and professional environment in the UK. Accordingly, the GMC believe that “More needs to be done to ensure consistency of induction for overseas trained doctors, so that they can gain an early understanding of the ethical and professional standards they will be expected to meet, as well as familiarity with how medicine is practiced in the UK.”

Continue reading