Are you leading the way on the AWD?

As Asda takes the lead in introducing equal pay for its temporary workers, following on from a report commissioned in the meat sector, are you leading the way? Have you introduced equal pay, treatment and conditions for your temps in advance of the AWD introduction in October 2011?

Use it or loose it for annual leave interpretation of ECJ decision

This is the first reported case of a tribunal applying the European Court of Justice (ECJ) decision made in Pereda (ECJ C-277/08). The ECJ held that holiday could be postponed where an employee was sick, if necessary to the next holiday year.

The issues in this case were very similar to those in Pereda. Shah had booked holiday towards the end of the holiday year, but then was absent due to sickness at the time of his planned leave. He was paid sick pay during his absence and holiday pay during what would have been his holiday period. The holiday year ended before he returned to work and he asked if he could take the holiday leave after his return in the new holiday year. He accepted he would have to account for the holiday pay that had already been paid. His employer refused, relying on Regulation 13(9) of the Working Time Regulations 1998, which sets out a “use it in the year of accrual or lose it” rule in relation to annual leave.

The employment tribunal held that it was bound to follow the ECJ decision, and that it was not possible to construe Regulation 13(9) in accordance with that decision. The normal course of events would be for Shah to bring a High Court claim against the government on the basis that it had not correctly transposed the EU directive into UK law. However, this would not have given Shah an appropriate remedy because he was seeking holiday leave, not financial compensation.

The tribunal held that it was permitted to add words to Regulation 13(9) to ensure compliance with the directive, as this was consistent with the underlying thrust of the legislation. So it inserted words to the effect that the “use it or lose it” policy would not apply where an employee had been unable to take annual leave as a result of sickness absence.

Although only a tribunal decision, the case suggests that employment tribunals are willing to interpret the UK regulations in line with the Pereda decision, even where the regulations clearly contradict what the ECJ ruled in that case. Employers who have been intending to rely on a strict interpretation of the regulations to refuse the carrying over of holiday in this sort of situation may wish to keep an active watch on developments in this area.

Case ref ET 1809311/2009

Equality Bill amendment on default retirement age is scrapped again

An Equality Bill amendment calling for the default retirement age (DRA) to be scrapped by the end of next year was withdrawn for the second time yesterday after the Leader of the House of Lords said the government would take action on the DRA "as soon as reasonably practical".

Liberal Democrat peers Lord Wallace and Lord Lester had called for a 'sunset clause' to be added to the Bill so that, if the government failed to remove the DRA of 65 by 2011, it would be abolished through the equality legislation.

But, following the reassurances from the Leader of the House, it was withdrawn. Lester was forced to withdraw a previous amendment to the Bill calling for the DRA to be removed immediately, because the Lords ruled they should wait for the government review on its usage, due this summer.

Rachel Dineley, head of the diversity and discrimination unit at law firm Beachcroft, said it was important that time be given for employers to adapt to any change to the DRA, warning that a failure to do so would inevitably lead to confrontation and litigation, which could otherwise be avoided.

"It will undoubtedly take time to put in place the various measures that many employers may need to take to cater for what will be, in some respects, a radical development in employment practice," she said.

"There is a great deal to consider, including such issues as the potential cost – for example, insurance benefits - for those working beyond 65, and performance management in respect of those who want to work on when they would otherwise have been graciously left to retire."

New Employment Law changes stack up as a general election looms

It’s difficult to recall a year when we haven’t been swamped with employment law proposals – some dictated by EU law; some by the domestic politics of the day. A whole host of government consultation documents are out at the moment and it’s hard to imagine them disappearing, even if there’s a change at Number 10. Whoever is in power, the proposals don’t go away. Family-friendly policies, for example – previously somewhat neglected by the Tories – now look likely to be part of their election manifesto.

And, of course, there’s case law. Large numbers of equal pay cases are still being pursued, mainly in the public sector. Since many are being sent to the higher courts, they are likely to cost many millions of pounds in taxpayers’ money.

Disability law continues to be affected by Lewisham v Malcolm (2008 UKHL 43), which emasculated the right to claim for disability-related discrimination. The court held that, where a disabled person was treated the same way as someone without a disability for a reason related to the disability, no discrimination took place. Later courts tried to mitigate Malcolm’s consequences by focusing on the duty to make reasonable adjustments.

The Equality Act 2010 will replace disability-related discrimination with negative treatment owing to disability – eg, disciplining employees for absences caused by their disability. The act will introduce indirect disability discrimination too, while Parliament is considering a clause to make it harder for any recruitment documentation to ask questions about a candidate’s health.

Religious discrimination continues to exercise the courts. London Borough of Islington v Ladele (2009 EWCA Civ 1357) concerned a registrar’s unwillingness to conduct civil partnership ceremonies, for example. In this case the court held that the council’s indirect discrimination was justified. The EAT did the same in a case about a relationship counsellor who refused to work with same-sex couples (McFarlane v Relate, UKEAT/0106/09). It held that there was no discrimination against someone banned from wearing a cross at work (Eweida v British Airways, UKEAT/0123/08, confirmed by the Court of Appeal) but also that “belief in climate change” may amount to a philosophical belief (Grainger plc v Nicholson, UKEAT/0219/09).

In Osborne Clarke Services v Purohit (UKEAT/0305/08) the EAT held that refusing an Indian applicant for a job because he had no right to work in the UK was racial discrimination even though it was contrary to the Asylum and Immigration Act 1996. This act makes an “offer” of employment conditional on the person’s ability to work in the UK. It did not apply at the initial shortlist and interview stage. This is an odd decision, and the legislation did not provide justification, since the employer could have applied to become a sponsor.
So, election or not, it appears to be business as usual in employment law.



Proposed changes
- Default retirement age The government has brought forward its review by a year in light of the Heyday judgment. The age is likely to rise from the current 65 years.
- Parental leave An EU directive has extended the right to unpaid leave to four months. The UK should implement this within two years.
- National minimum wage There is an ongoing consultation on an increase for apprentices.
- Bank holiday There are plans for an extra day on 5 June 2012 to celebrate the Queen’s diamond jubilee (the late May holiday would be moved to 4 June to create a long weekend).



Definite changes
- Public interest disclosure From 6 April claimants making whistle-blowing allegations will be asked on the tribunal ET1 form whether they wish the issue to be referred to the appropriate regulator.
- Corporate manslaughter Guidelines recommending higher sentences for offences are now in force.
- Agency workers The regulations are published and due to be implemented by October 2011.
- Paternity leave New rules on extended paid period will be effective from April 2010, for fathers-to-be with babies due from 3 April 2011.
- Training A new right to request time off for training will apply from April 2010 in organisations with 250 or more staff, and from 2011 in all other organisations.
- Blacklisting Regulations making it unlawful to deny employment to people on a trade union blacklist are expected in “early 2010”.
- Fit notes “Fit notes” will replace GPs’ sick notes from 6 April.
- European works councils Regulations are being recast to fit the revised directive.
- Equality Act 2010 Two new codes relating to employment and equal pay are due to come into force with the act in October.

Business lack confidence concerning Employment Law

Small businesses are suffering from a lack of confidence when it comes to employment law, it has been claimed.

Research by the Department for Business, Innovation and Skills shows that just a third of firms are confident of their understanding of employment law.

In addition, while almost half of those questioned said it is important to stay up to date with employment law changes, a quarter admit they are not up to speed with such matters.

Employment relations minister Lord Young said: "We know that running a small business is both challenging and rewarding - and that this combination often fuels a successful enterprise. The essential job of managing employment law need not be one of these challenges."

He added that the study has identified a number of knowledge gaps and will be used to tailor the advice businesses are given.

Sham redundancy was infact disability discrimination

Wright v Tru Homes Ltd ET/1701224/09

Mr Wright, a designer of timber frames who suffered from a serious brain tumour, was dismissed purportedly for redundancy by his employer. He brought claims of unfair dismissal and disability discrimination. The tribunal found that there was no genuine redundancy situation, and that the employer effectively demoted Mr Wright and reduced his pay for no good reason. The employer also failed to make reasonable adjustments to assist Mr Wright with regard to his medical condition, which included denying his request to work from home while undergoing treatment.

Withdrawal of job offer due to previous mental health issues was discrimination

Irvine v Chief Constable of Nottinghamshire Police ET/2602970/08

Ms Irvine, who suffered from bipolar affective disorder, claimed disability discrimination after her job offer, as a temporary learning and development officer, was withdrawn. The reason given to Ms Irvine was that she “was unlikely to be suitable for this role due to health reasons”, despite the fact that she satisfied the application requirements regarding her sickness absence for the previous three years. The tribunal held that Ms Irvine’s condition amounted to a disability, and that her prospective employer had discriminated against her not only directly - by retracting the job offer - but also by failing to make reasonable adjustments to assist her appointment