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Employment Digest

Workers on Long-Term Sick Leave – Case Goes to Appeal

Permission to appeal to the House of Lords has been granted in the case of Ainsworth & Others v Commissioners of the Inland Revenue.

The case concerns Inland Revenue employees who had been off work for substantial periods without pay but who remained employees, for example on account of long-term sickness.

In April 2005 the Court of Appeal held, in a unanimous decision, that the right to four weeks’ statutory paid holiday under the Working Time Regulations 1998 (WTR) does not continue to accrue whilst an employee is absent on long-term sick leave. The decision only referred to employees who are absent for an entire holiday year and was based on the argument that leave cannot be taken by someone who is not at work. In addition, the holiday entitlement under the Regulations is designed to ensure minimum health and safety standards apply to working time. If an employee is not at work, he or she cannot derive any health benefit from taking leave.

The Court of Appeal also decided that claims to enforce entitlement to holiday pay under the WTR cannot be made as applications in respect of unauthorised deductions from wages under the Employment Rights Act.

“This issue remains unresolved until the appeal is heard,” says Grant Goodlad, DFA Law. “Employers with staff on long-term sick leave are advised to seek advice when dealing with this issue.” For advice please call DFA Law on 01604 609560

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Disability Discrimination Act 2005

Employers are reminded that the employment-related sections of the Disability Discrimination Act 2005, which make changes to the definition of ‘disability’, came into effect on 5 December 2005. Protection under the Act is extended to those diagnosed with progressive forms of cancer, HIV and multiple sclerosis. Previously, protection was afforded when the illness started to have an adverse effect on a person’s ability to carry out their day-to-day activities.

In addition, there is increased protection for those suffering from mental illness as the requirement that the condition is a clinically well-recognised illness has been removed.

In particular, employers who have not already done so are advised to review stress management and long-term absence policies and procedures so that potential problems are identified early on and action taken as soon as possible. For advice call DFA Law on 01604 609560.

Useful information for employers can be found at http://www.drc-gb.org/businessandservices/employment.asp.

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Information and Consultation of Employees Regulations

The Information and Consultation of Employees Regulations

ICER requires employers of a certain size to set up consultative bodies with their employees. On their face, unless employers take steps to agree an alternative structure, ICER gives employees a right to be:

  • informed about developments in the business’s activities or economic situation;and
  • informed and consulted about:
    - employment prospects, and
    - decisions likely to lead to substantial changes in work organisation or contractual relations, including redundancies and transfers.

“ICER” will be phased in so that it applies from:

  • 6 April 2005 to undertakings of 150 or more employees
  • 6 April 2007 to those of 100 or more employees
  • 6 April 2008 to those of 50 or more employees.

To find out more about what this means for you – whether you are an employee, union or employer – contact info@dfalaw.co.uk.

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Compulsory Retirement Ages

The government has outlined its plans for tackling age discrimination in the workplace.

Legislation will:

  • set a default retirement age of 65, but also create a right for employees to request working beyond a compulsory retirement age, which employers will have a duty to consider;
  • closely monitor the appropriateness of keeping a retirement age, subjecting it to formal review five years from implementation.

People will no longer be required to retire at 65 unless the employer has proper justification. The EC Equal Treatment directive 2000/78 is due to come into force by October 2006.

For advice on your position contact our Employment team on info@dfalaw.co.uk.

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Copying Computer Databases

Restrictive covenants exist to prevent loss of data by employers when employees leave. In a recent case an employee left and set up a business having emailed a copy of the companys database to his sister. The Court found the ex-employee had thus copied the database and ordered that it be returned. The company had not at that point traded, so there was only an award of nominal damages.

The companys data was thus protected - but the need to act fast is clear. We can help in similar circumstances: contact info@dfalaw.co.uk to ensure your covenants are valid and in the event of them being breached.

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Trade Union Dismissals

From 6 April 2005 a new section 154 of TULCRA 1992 (see section 35 of the Employment Act 2004) shifts the burden on to the employer in cases where it is alleged the main reason for dismissal was trade union membership or activities. The normal qualifying period and unfair dismissal age limits also do not apply.

For further information on your employment rights contact info@dfalaw.co.uk.

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Reduction in compensatory award when incapacity benefit is paid

A Claimant recently appealed against a decision that incapacity benefit which had had been paid should be deducted from a compensatory award. Between his dismissal and September 2003, he was declared unfit to work by his GP by reason of psychological difficulties attributable to his loss of employment. A tribunal took the view that it was just and equitable that there should be a full deduction as the Claimant would otherwise be in a better position than had he remained in employment. The EAT held that invalidity benefit must be deducted in full, citing the claimant’s duty to mitigate.

Yet in another case, in relation to credit for notice monies received: “It is open to an employment tribunal to decide in accordance with good industrial practice that a former employee who obtains new employment during a notice period is not required to give credit for it”.

Deductions from compensatory awards are difficult to assess – info@dfalaw.co.uk will help prepare you for any likely deductions from your claim.

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Disability Discrimination - The Next Phase

The Disability Discrimination Act 2005 received the Royal Assent and became law on 7 April 2005. There are three areas of interest to employers:

  • Section 10 of the Act makes third party publishers (newspapers) liable for discriminatory advertisements.
  • Section 11 makes it clear that insurance provided on group terms is covered by the Act. This will cover insurance provided to an employers staff.
  • Section 18 modifies the meaning of disability. The definition is extended to cover HIV, "infection by a virus capable of causing the Acquired Immune Deficiency Syndrome", cancer and/or multiple sclerosis from the time of diagnosis even if the person can carry on normal day-to-day activities. Persons with mental illnesses are to be covered even if the illness is not a clinically well recognised illness.

For advice and assistance on discrimination issues contact our Employment team on info@dfalaw.co.uk.

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Flexible Working and Unfair Dismissal

Section 41 of the Employment Relations Act 2004 came into force with effect from 6 April 2005. No qualifying period is now required to have the right to claim unfair dismissal relating to an employer’s failure to consider a request for flexible working where the request is authorised by statute (the statutory requirements will still need to be satisfied to make a claim).

Contact info@dfalaw.co.uk to ensure you know your position.

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Jury Service

Section 40 of the Employment Relations Act 2004 is entitled "Protection of employees in respect of jury service" and introduces a new Employment Rights Act 1996 section 98B with effect from 6 April 2005. Dismissal because of jury service will be automatically unfair unless the circumstances were such that the employees absence in pursuance of being so summoned was likely to cause substantial injury to the employers undertaking and:

  • the employer brought those circumstances to the attention of the employee;
  • the employee refused or failed to apply to the appropriate officer for excusal from or a deferral of the obligation to attend in pursuance of being so summoned; and
  • that refusal or failure was not reasonable.

If your employment is compromised by jury service, or you are an employer worried about your next action, contact info@dfalaw.co.uk.

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Information and Consultation of Employees Regulations

ICER requires employers of a certain size to set up consultative bodies with their employees. On their face, unless employers take steps to agree an alternative structure, ICER gives employees a right to be:

  • informed about developments in the business’s activities or economic situation; and
  • informed and consulted about:
    - employment prospects, and
    - decisions likely to lead to substantial changes in work organisation or contractual relations, including redundancies and transfers.

“ICER” will be phased in so that it applies from:

  • 6 April 2005 to undertakings of 150 or more employees
  • 6 April 2007 to those of 100 or more employees
  • 6 April 2008 to those of 50 or more employees.

To find out more about what this means for you – whether you are an employee, union or employer – contact info@dfalaw.co.uk.

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Pregnancy

Equal Opportunities Commission

The EOC has produced a report which gives an indication of the nature and extent of discrimination by employers against pregnant workers. The report “Greater Expectations” suggests that up to 30,000 jobs are lost annually as a result of pregnancy. It contains key recommendations for remedying employers’ lack of knowledge of maternity rights.

If you are unsure of your rights as a worker, or obligations as an employer, take advice before acting. Contact info@dfalaw.co.uk for our assistance.

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When is disability not disability?

In a recent EAT case, it was decided that disability must be shown as a matter of fact and belief is not sufficient. An employer and employee had both believed that the employee had Type 1 Diabetes – a disability that requires reasonable adjustments to be made at the workplace. In fact the employee had Type 2 Diabetes, which does not. The ruling meant that the employee had no claim against the employer for failing to make reasonable adjustments.

For advice on disability matters in the workplace, contact info@dfalaw.co.uk

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Minimum Wage

The Government has set out the annual increase in the level of the national minimum wage. The principal rate rises from £4.85 to £5.05 per hour, and the lower rate from £4.10 to £4.25 per hour.

If you have problems with wages issues - as an employer or an employee - contact info@dfalaw.co.uk immediately.

Sick Pay or Maternity Pay?

In a recent case which came before the European Court of Justice a public sector employee employed in Ireland had discovered that she was pregnant and was on sick leave due to an illness linked to her pregnancy for almost the entire duration of her pregnancy. Under the employer’s sick leave scheme employees were entitled to full pay for a maximum of six months followed by six months at half pay in any four-year period. The scheme made no distinction between absence for pregnancy-related illness and other illness. The claimant was paid under the scheme. She sued, arguing that pregnancy meant her period of illness should not be set against her sick pay entitlement. The Court ruled that the employer was entitled to treat it as part of the sick pay scheme, but noted that this would only be true if such treatment was not different to a male comparator and did not lead to her being worse off than were she on maternity pay only.

Issues relating to pregnancy and employment require careful consideration – for our advice contact info@dfalaw.co.uk

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Restraint of Trade Clauses

The dismissal of an employee when it was discovered that he was planning on setting up in competition and acquiring the employer’s staff and customers led to some staff who were related to the employee being asked to sign a new contract containing a nationwide restriction for twelve months. They refused to sign and were dismissed. The EAT ruled that this was unfair dismissal by reason of the restraint of trade being an unfairly harsh one.

Restraint of trade clauses are difficult to enforce, but if fairly drafted, can protect the employer for a period. For advice as employer or employee, contact info@dfalaw.co.uk

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Family Friendly Proposals

The latest round of family friendly proposals in the Works and Families Bill will:

  • Extend Statutory Maternity Leave and Maternity Allowance from six to nine months.
  • Allow fathers paternity leave and statutory pay if the mother returns to work after six months but before the end of her maternity leave. In effect the father could take three months paternity leave on the state allowance (currently) £106. However, there is an expectation that employers will be under pressure to pay fathers their full salaries as they do for mothers.
  • Introduce ‘keeping in touch’ days so a woman on maternity leave can go into work for a few days without losing her right to maternity leave or a week’s statutory pay.
  • Extend the notice for return from maternity leave from 28 days to two months.
  • Allow employers to make reasonable contact with their employees on maternity leave to help them plan and ease the mother’s return to work.

For guidance on family friendly working practices contact info@dfalaw.co.uk now.

Call us now on 01604 609560 for more information
or email us at info@dfalaw.co.uk