Employment update: Holiday entitlement | TUPE transfer | DBS code of practice

If a part-time worker increases their hours, should you recalculate holiday entitlement?

Yes (but not retrospectively), held the ECJ in Greenfield v The Care Bureau Ltd (C-219/14)

This case dealt with the calculation of holiday when a worker increases their hours during a holiday year. Unsurprisingly, the ECJ decided that holiday entitlement for each period of work should be calculated separately, meaning that:

• Any holiday entitlement already accrued need not be recalculated retrospectively to take account of increased working hours.
• Going forward, holiday entitlement should be recalculated to reflect the new working pattern.
• Any holiday taken in excess of the entitlement that applied under the previous working pattern should be deducted from the holiday going forward.

Note that the same rules apply whether you are calculating holiday accrual during employment, or once employment has been terminated.

No TUPE transfer where transferor remains the employer – Hyde Housing Association Ltd and other v Layton UKEAT/0124/15.

Is there a TUPE transfer when an employee, originally employed by one company, becomes employed by a group of companies (including the original employer)? No, says the EAT.

The facts

Mr Layton was employed as a decorator by Martlet Homes Limited (a registered provider of social housing). In January 2008 Martlet joined a group of companies called the Hyde Group, and became a subsidiary of Hyde Housing Association Limited. After a restructure, Mr Layton was dismissed by Martlet and re-engaged on a new contract by the Hyde Group (which still included Martlet). Mr Layton claimed unfair dismissal. The key issue was whether Mr Layton’s employment transferred under TUPE from Martlet to the Hyde Group

The decision

The EAT held that there was no relevant transfer as there was no change to the identity of the employer. Since Martlet retained liability for Mr Layton’s employment (even though its liability was now joint and several with other employers), the change of employer was not legally relevant for TUPE purposes.

As a side note, another argument put forward by the respondent was that TUPE cannot apply when there is a transfer to several entities (rather than to one single entity). The EAT rejected this. If Mr Layton’s employment had transferred from Martlet to the other members of the Hyde Group (excluding Martlet), then that could be a relevant transfer. This would depend on the facts, and could not occur where the transfer results in fragmentation of the entity such that it loses its identity.

DBS – updated code of practice published

The DBS has published a revised code of practice for registered persons and other recipients of disclosure information. It includes information on registration details, the application process, identity verification, data handling, suitability policy, eligibility, compliance requests and payment of fees.

View the code