The TUC will use a European ruling to help member unions
claim back holiday pay if the European Court of Justice (ECJ) decides the EU
Working Time Directive has been wrongly interpreted in England.
The TUC’s policy is to bar the practice of giving agency
staff ‘rolled-up’ holiday pay – where
holiday pay is added as a percentage of the regular pay packet.
Rolled-up holiday was thought to comply with the directive,
but this has been challenged in Robinson-Steele v R F Retail Services by the
Leeds Employment Tribunal and referred to the ECJ.
"Unions will use [the judgment] as a strong
precedent," said Paul Sellers, policy officer with the TUC. "If the
principle is that the directive was wrongly interpreted, then [the unions] will
seek back pay."
Last month, Paula Rome, training and development solicitor
with law firm Lewis Silkin, said businesses would have to pay holiday to
temporary workers twice if rolled-holiday was found not to comply with the
directive.
Sellers said the TUC could find no other country in Europe
that was interpreting the directive in this way, and that Scotland had now
barred the practice following the recent ruling in MPB Structures v Munro at
the Scottish Court of Session.
In 2002, the Office for National Statistics found there were
1.5 million employees in temporary or short-term contracts in the UK. Sellers
said nobody knew how many of these received rolled-up holiday pay because the
Government did not survey for this information.
Ken Hutchinson, HR director at Good Hope NHS Trust in
Birmingham, said he was concerned about the issue and was following it closely.
He said he would try to ensure temporary staff could take holiday during the
contract, or be paid for the entitlement at the end of the contract term.
"There needs to be a common sense approach,"
Hutchinson said. "Some people just work two days a week, or some people
could have a temporary contract for a year. NHS staff [work] under extreme
pressure – they should not go without holiday."
In the conjoined appeals in Clarke v Staddon and
Caulfield v Marshalls Clay Products, Lord Justice Laws said rolled-up pay
complied with the EU directive.
