When I last wrote my subject was the holiday season focusing on holiday pay and taking the obligatory swipe at the summer weather.
With the imagination for which members of the legal profession are rightly renowned I thought it would be an ideal time to return to this subject while also being unable to resist a reference to the fine weather we are enjoying.
In relation to the weather, this summer I will be braving the great outdoors and joining some of my more youthful colleagues on the Ledingham Chalmers’ stands at the Sutherland and Nairn agricultural shows.
We will also be making our annual trip to the Black Isle show in August.
These are all splendid Highland events but given the recent experiences of the Open at St Andrews I am now regretting not replacing the firm’s gazebo style stand with something more British summer compliant, perhaps the latest design by Noah?
Even if my meteorological observations are, in the circumstances, forgivable it may be that a less charitable view will be taken about my ongoing fascination with holiday pay.
I confess what I particularly enjoy is that judges continue to “interpret” the legislation governing holidays by making up new wording.
In fairness all the poor judges are trying to do is make certain aspects of UK law EU compliant but it still a strange state of affairs.
The latest example is that the courts have interpreted the rules on holiday pay to mean that those employees who are unable to take annual leave in one holiday year due to ill-health are entitled to carry forward their basic holiday entitlement to the following year.
Judges have also ruled that this right should be subject to a maximum period of 18 months from the end of the following holiday year (i.e. any holidays carried forward but not taken by then will be lost).
Now I accept that this may not seem particularly exciting but here is the point.
The actual legislation makes it clear that there is no right to carry forward holidays and there is not even a hint at an 18 month cut off period.
Now one view of this is that this makes my comments about the legal profession being unimaginative patently unfair.
Judges are instead demonstrating an ability to see the world in a way Lewis Carroll’s Humpty Dumpty would have approved of (“legislation means exactly what we say it means even if it actually says the contrary”).
A slightly more practical concern, however, remains that the law should be certain and where rules are set out in black and white we should be able to accept what we read.
The ultimate answer to the confusion over holiday pay remains for parliament to rewrite the rules to make them EU compliant.
Writing legislation is what parliaments do and it is genuinely unfair that this task is being left to judges.
However I am not quite so sure what the ultimate answer is to the unfortunate weather.
I will , however, be googling “Ark Makers” in preparation for the 2017 Highland season of agricultural shows.
Kirk Tudhope heads Scottish law firm Ledingham Chalmers’ employment team and specialises in TUPE, equal opportunities, freedom of information and data protection.