Terveys-ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan litto ry
The case of Terveys-ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan litto ry heard by the European Court of Justice considered the carry-over of holiday entitlement.
The ECJ joined two separate cases. In the first, the claimant was employed as a laboratory assistant for a Finnish company. Between 2 September and 23 September 2015, she was absent from work due to sickness. During that period, she had six days of annual leave authorised and asked to carry them over until a later date due to her sickness absence. Her employer carried over two days of leave, which is the amount that she was entitled to under Finnish law. The remaining four days of leave, which she was entitled to under the health sector collective agreement, were not carried over.
The second case involved a claimant employed by another Finnish company who took sick leave between 29 August and 4 September 2016. He also requested six days annual leave to be carried over as he was unable to take it due to sickness absence. However, this was refused on the basis that the leave was due under freight transport sector collective agreement rather than Finnish law.
The questions arising were whether the Working Time Directive (WTD), or the Charter of Fundamental Rights of the European Union, prevented carry over of such additional leave as provided for by national rules or collective agreements on the grounds of illness.
The Advocate General gave an opinion that neither precluded national laws which limit carry over of holiday to four weeks in the event of sickness.
This case reaffirms the previous decision in Sood Enterprises Limited v Healy that employers can limit carry over of holiday to four weeks’ leave under the WTD in cases of sickness absence.
In Royal Mail Group v Jhuti the Supreme Court held that where the real reason for dismissal is hidden from the decision maker behind a reason concocted by a person in the employer’s hierarchy above an employee, the hidden reason can be attributed to the employer. Consequently the employer can be held responsible for what could be an unfair dismissal.
Ms Jhuti started working for Royal Mail Group Limited (“Royal Mail”) in 2013. When she suspected that her colleague had breached Royal Mail’s rules and the requirements of its regulator Ofcom, she diligently reported this to her team leader, Mr Widmer, by email. Mr Widmer responded by questioning Ms Jhuti’s understanding of the rules and requirements that she claimed had been breached. He reminded her that she was on a trial period, and that her allegations could cause trouble for everyone. He asked her to send an email retracting her allegations and admitting that she had made a mistake. He also told her for the first time that she was failing to meet the requirements of her role. Ms Jhuti fearfully sent the email that Mr Widmer had suggested.
In the period that followed, Mr Widmer subjected Ms Jhuti to treatment which Ms Jhuti complained about to Human Resources twice. She said that she was being harassed and bullied as a result of her disclosures.
Ms Jhuti made a successful request to have her line manager changed. Her new line manager extended her trial period by one month and told her that she was not making the progress he expected. Ms Jhuti went on sick leave and raised a grievance. Royal Mail responded by offering her a termination package, which she rejected.
While Ms Jhuti was off sick, another manager, Ms Vickers, was appointed to consider whether Ms Jhuti’s employment should be terminated on the basis of poor performance. Ms Vickers did not know the background of Ms Jhuti’s disclosures and was only given information about her performance.
Ms Vickers invited Ms Jhuti to a hearing in July 2014. Ms Jhuti responded in a series of emails that she was being sacked for telling the truth. Ms Vickers then spoke to Mr Widmer, who explained that Ms Jhuti had alleged improper conduct at Royal Mail, but after he discussed matters with her, Ms Jhuti accepted that she had misunderstood.
Ms Jhuti was too unwell to meet Ms Vickers. Ms Vickers subsequently wrote to Ms Jhuti explaining that her employment would be terminated on notice as she had failed to meet required standards.
Ms Jhuti lodged an unsuccessful appeal, and went on to complain to an Employment Tribunal that she had been unfairly dismissed as a result of making protected disclosures.
If the main reason for an employee’s dismissal is that they have made a protected disclosure, their dismissal will be automatically unfair under section 103A of the Employment Rights Act 1996.
A series of appeals meant that the case reached the Supreme Court. Lord Wilson gave the Court’s unanimous judgment. He noted that, in identifying the reason for a dismissal for the purpose of section 103A, Courts generally needed to look no further than the reasons given by the appointed decision maker. However, where the real reason for the dismissal is hidden from the decision maker behind an invented reason, the Court has a duty to look behind it, rather than let its own determination be affected. Where the invented reason was given by someone placed by the employer in the hierarchy of responsibility above the employee, there is no conceptual difficulty in attributing to the employer the inventor’s state of mind, rather than that of the deceived decision maker.
