Employment update 26 Feb
26 February 2010
Welcome to our fortnightly round-up of what's happening in
employment law.
When holiday and sick leave coincide
An Employment Tribunal has confirmed that an employee who is
unable to take his pre-booked holiday due to sickness should be
allowed to carry over his leave entitlement to the following leave
year.
Under regulation 13(9) of the Working Time Regulations 1998
(WTR), leave can only be taken in the leave year in respect of
which it is due. However, in Pereda v Madrid Movilidad SA,
reported in our Employment Update last
year, the European Court of Justice confirmed that under the
Working Time Directive, workers who are sick during a period of
annual leave are entitled to take that leave at a later date which,
if it cannot be rescheduled in the current leave year, may be in a
subsequent leave year. This ruling has now been applied by an
Employment Tribunal in the UK.
In Shah v First West Yorkshire Limited, Mr Shah booked
four weeks' holiday from 22 February to 21 March 2009. Under his
contract, his holiday year was 1 April to 31 March. After breaking
his ankle in January 2009, he was absent from work from 15 January
to 18 April 2009. His sickness absence therefore overlapped with
his booked holiday. During his absence, Mr Shah received
contractual sick pay and was also paid holiday pay for the leave he
had booked. Mr Shah asked his employer whether he could reclaim his
holiday but was informed that he could not do so as he returned to
work in the new holiday year, and therefore the holiday had been
"lost". Mr Shah subsequently brought a claim for his loss of
holiday.
The Employment Tribunal considered that, following
Pereda and in order to comply with the Directive, national
law must permit an employee who falls sick during a period of
annual leave to take that annual leave later and, if time does not
permit that leave to be taken within the current leave year, within
the following leave year. The question arose whether it was
permissible to construe regulation 13(9) of the WTR in such a way
so as to give effect to the Directive and Pereda.
The Employment Tribunal stated that the primary health and
safety purpose of regulation 13(9) is to give workers paid periods
of leisure regularly throughout the year and prevent them from
storing up holidays or taking lengthy periods of extended leave. It
considered that adding words to the end of regulation 13(9), to
cover the 'limited and special situation' dealt with in
Pereda, would be consistent with the underlying thrust of
the legislation. The words added by the Employment Tribunal clarify
that a worker who has been prevented by illness from taking a
period of holiday leave and returns from sick leave with
insufficient time to take that holiday leave within the relevant
leave year, must be given the opportunity to take that holiday
leave in the following leave year.
The Employment Tribunal therefore upheld Mr Shah's claim and
made a declaration under the WTR that the employer had refused to
allow Mr Shah to exercise his rights under the WTR by refusing to
allow him to take his accrued holiday in the following leave year
when he was prevented by illness from taking it in the current
leave year. Whilst the decision of the Employment Tribunal is not
binding on other tribunals, it provides long-awaited guidance on
the interpretation of the WTR.
Banning the wearing of a cross is not indirect
discrimination
The Court of Appeal has confirmed that British Airways'
requirement that an employee remove or conceal the cross on her
necklace, in order to comply with its uniform policy, did not
constitute indirect religious discrimination.
In the much publicised case of Eweida v British Airways
plc (BA), Ms Eweida, a devout practising Christian, wore a
cross on a necklace on at least three occasions. She refused to
comply with BA's uniform policy which prohibited the wearing of any
visible item of adornment around the neck. Whilst there were
exceptions from the policy (for instance, where wearing the item
was a 'mandatory' requirement and could not be concealed (e.g. the
Sikh turban)), Ms Eweida's wish to wear a cross fell outside the
exceptions. Ms Eweida subsequently brought a number of claims
against BA under the Employment Equality (Religion or Belief)
Regulations 2003.
Her claims were dismissed by the Employment Tribunal. In
relation to her indirect discrimination claim, she had failed to
show, as required under the Regulations, that Christians had been
placed at a particular disadvantage when compared with others.
There was no evidence that anyone other than Ms Eweida considered
themselves disadvantaged by BA's uniform policy because of their
religion or belief. Ms Eweida appealed against the dismissal of her
indirect discrimination claim but the Employment Appeal Tribunal
(EAT) rejected her appeal.
The case reached the Court of Appeal. Ms Eweida argued that the
Employment Tribunal was mistaken to look for evidence of group
disadvantage and that the EAT was mistaken to uphold the tribunal's
decision. According to Ms Eweida, the BA policy could be indirectly
discriminatory even if only she was disadvantaged by it and there
was no need to show that the policy put others at a
disadvantage.
The Court dismissed Ms Eweida's appeal and found that she had
not suffered indirect religious discrimination as a result of BA's
uniform policy. It confirmed that equality laws have sought to
address the discriminatory impact of apparently neutral
requirements by seeing, first, whether an identifiable group is
adversely affected, whether actually or potentially, by some
ostensibly neutral requirement and then whether the claimant has in
fact been disadvantaged by it. There was nothing in the legislation
suggesting that one person (rather than a group) could be the
subject of indirect discrimination. The Court confirmed that, for a
finding of indirect discrimination, some identifiable section of a
workforce, which may be a small one, must be shown to suffer a
particular disadvantage which the claimant shares.
This decision will be welcomed by employers, as it clarifies the
parameters of indirect discrimination and the need to identify a
group disadvantage. It has been reported that Ms Eweida intends to
appeal the decision to the Supreme Court.
Vote to extend paid maternity leave
The European Parliament Women's Rights Committee has voted in
favour of extending the minimum period of maternity leave in the EU
from 14 to 20 weeks on full pay.
As statutory maternity pay in the UK is currently payable at two
different rates for eligible employees (i.e. six weeks at 90% of
the employee's normal weekly earnings, followed by 33 weeks at the
current prescribed rate of £123.06 a week), the potential costs
implications of these proposals has caused some concern. Lord
Young, the Employment Relations Minister, has been reported as
saying: "we already have a generous system which is better than
many EU countries and works well, balancing the needs of business
and workers. A substantial increase in maternity leave paid at full
or near-full pay risks undermining this delicate balance at a time
when economies across the EU can least afford it".
Dads at Work – new campaign
The Department of Business, Innovation and Skills (BIS) has
launched a month long campaign, 'Dads at Work', to raise awareness
amongst dads about their rights at work.
According to figures published by BIS, 56% of dads surveyed with
children aged 16 and under said that they would look for an
employer who offers flexible working when choosing a new job and
91% of dads with children aged five or under believe it is
important that fathers have the option to take paid paternity
leave. Research also showed that 20% of the dads with children aged
16 or under did not know if their company offered flexible working
to fathers and 34% of parents with children aged nought to five did
not realise that paid paternity leave is a legal entitlement.
From 'sick note' to 'fit note'
Following our report about the new 'fit notes' in the last
Employment Update, the Government has now published guidance on the
new 'fit notes'.
The fit notes are due to be introduced on 6 April 2010 and will
replace the traditional 'sick notes', focusing on the steps that
can be taken to assist an employee's return to work.
Older workers forced to retire
New research from Age Concern and Help the Aged shows that the
use of mandatory retirement ages soared during the recession‚ with
over 100‚000 people forced to retire on or after turning 65.
The survey reveals the impact that forced retirement has had on
the older workforce since the default retirement age of 65 was
introduced in 2006. Age Concern and Help the Aged believe the
figures suggest that employers have used forced retirement as a
cheap alternative to redundancy during the recession and are
challenging all political parties to commit to scrapping forced
retirement legislation.
Work Your Proper Hours Day
Today is "Work Your Proper Hours Day"! According to the TUC, 26
February is the day when the average person who does unpaid
overtime finishes the unpaid days they work every year, and starts
earning for themselves.
The TUC suggests that this is one day in the year to make the
most of your own time - take a proper lunch break and leave work on
time to enjoy your Friday evenings...
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