employment law news - March 2010 - print version
are you ready for fit notes?
The new system of 'fit notes' will come into
force on 6 April 2010, despite concerns that this leaves little
time for doctors and employers to prepare for it. The 'fit note'
statement will list common changes which could be made to an
employee's work environment or job role to facilitate a return to
work. There will not be a "fit for work" option, but instead an
option stating "you may be fit for work taking account of the
following advice" – which leaves it for the employer (in
conjunction with the employee) to decide whether any changes can be
made to facilitate a return to work. It is expected that it will
take some time for doctors and employers to get used to the new
system and see a difference in sickness absence rates.
The new system throws up several issues which we consider in a
client
guide. The Department for Work and Pensions has now
published guidance in
conjunction with others. To assist small businesses, from 1 April a
new occupational health adviceline is to be available for all
employers with up to 249 employees.
TUPE: Court of Appeal overturns decision on collective
agreements
Last year in employment law news we reported on an EAT
decision that employers who take on staff from another employer
under the Transfer of Undertakings (Protection of Employment)
Regulations (TUPE) are bound not only by collective agreements in
force when the transfer took place, but also ones renegotiated
afterwards if, prior to the transfer, they were incorporated
into contracts of employment. The problem with this is that the new
employer may not be a party to the collective agreement and may
have no power to influence the decisions made. The good news for
employers is that the Court of Appeal has now overturned this and
other decisions, confirming that a 2006 European case on this issue
– in which the new employer was bound only by the collective
agreement in force at the time of the transfer – applies in the UK.
According to the Court of Appeal, there is nothing to suggest that
the UK Government had intended the TUPE regulations to grant
greater rights to employees than those under the European
Directive. Therefore, in relation to transferred employees, the new
employer is not bound by new collective terms which are negotiated
by third parties after the date of the transfer.
However, care may need to be taken: if
transfers occurred several years ago, and transferee employers have
always implemented the changes when collective agreements were
renegotiated, employees may potentially argue that their contract
has been varied by conduct to include such renegotiations.
Employers in this situation will need to take our advice. Employers
involved in transfers from now on should make clear that they do
not intend to be bound by future renegotiations.
grounds for revocation of work permit not sufficient for
illegality
According to the decision of the Employment Appeal Tribunal in
San Ling Chinese Medical Centre v Lian Wei Ji a contract
of employment will not be rendered unenforceable on the grounds of
illegality if changed circumstances mean that a work permit could
be revoked – actual revocation of the work permit is required.
Ms Wei Ji, a Chinese national working for San
Ling Chinese Medicine Centre under a student visa, was dismissed
from the San Ling Chinese Medicine Centre and claimed unfair
dismissal on the basis that that the statutory dismissal procedures
(as were in force at that time) were not followed. Her claim was
successful and the Employment Tribunal made an award for
compensation. San Ling Chinese Medicine Centre appealed to the
Employment Appeal Tribunal and argued that the Employment Tribunal
had erred because Ms Wei Ji's contract of employment was tainted by
illegality, meaning that she should not be able to enforce the
contract or claim unfair dismissal. It alleged that the contract
was unlawful because Ms Wei Ji was working full time, even though
her student visa only allowed her to work 20 hours a week during
term time, and because she worked for a lower salary than that
shown on her work permit. The EAT dismissed the appeal because the
Employment Tribunal had made unchallenged findings of fact that Ms
Wei Ji had graduated from her studies and was therefore entitled to
work without restriction for a year after graduation and that Ms
Wei Ji did not collude with San Ling Chinese Medicine Centre in
making a false declaration of proposed salary in order to obtain a
work permit.
This decision follows other judgments which
narrow an employer's ability to rely on illegality as a fair reason
for dismissing an employee. For further advice on immigration
issues please contact Michelle Lawlor in the Employment team
on 020 7814 6906 or email her at michelle.lawlor@bllaw.co.uk
holiday and sick leave: Tribunal adds words into Working Time
Regulations 1998
A Leeds Employment Tribunal has allowed a claim by an
employee who requested to carry holiday over into another leave
year when a broken ankle prevented him from taking it within the
holiday year. Mr Shah asked to reallocate pre-booked holiday
to another time since he was on sick leave from before the planned
holiday until after the end of the holiday year. His employer
refused on the basis that the leave had been lost. Last year a
decision of the European Court of Justice (ECJ) held that such
holiday must be allowed to be taken at another time, if necessary
in the following leave year (Pereda v Madrid Movilidad
SA). Whilst public sector employers have to comply with the
ECJ's decision because they are "emanations of the State", private
sector employers face a choice because currently the Working Time
Regulations 1998 (WTR) provide that leave may only be taken in the
holiday year it is due. However in this case the ET followed the
approach taken recently in another case (Attridge Law v
Coleman) and added words into the WTR to interpret them in
such a way as to give effect to the ECJ's decision, making it
applicable to private sector employers. The words added would allow
carry-over where a worker is prevented by illness from taking
holiday and returns from sick leave without enough time left to
take the holiday in the holiday year.
Please note that this
decision is not binding, and private sector employers still have
the option to refuse – although this is clearly not a risk-free
approach. The case does however show how other Employment Tribunals
might be inclined to decide similar disputes.
jewellery policy was not religious
discrimination
British Airways Plc (BA) has succeeded in the Court of Appeal in
defending its previous jewellery policy against an employee who
claimed it amounted to discrimination under the Employment Equality
(Religion or Belief) Regulations 2003. BA had a policy that
jewellery should not be visible, although items which were a
mandatory religious requirement could be permitted by management.
Ms Eweida, a practising Christian, was a member of check-in staff
who refused to conceal a silver cross necklace she wore. She was
sent home without pay, and brought a number of claims against BA.
Her claims failed, and although BA had by then changed its policy
resulting in Ms Eweida returning to work, she appealed on the issue
of indirect discrimination under the Regulations.
Indirect discrimination occurs where there is
a provision, criterion, or practice (PCP) applied to all employees
which puts or would put persons who share the claimant's religion
or belief at a disadvantage compared to others. The Employment
Tribunal had found that the disadvantage was suffered by Ms Eweida
and her alone. She provided no evidence that it was a requirement
of the Christian faith or that others were similarly disadvantaged.
The Court of Appeal confirmed that there must be evidence of real
group disadvantage (even if it is a small group): not a
hypothetical group, and not one lone individual. Had Ms Eweida
succeeded in showing discrimination on the basis of her
disadvantage alone, the Court would also have been inclined to
accept BA's justification defence, namely that the policy was a
proportionate means of achieving a legitimate aim.
holiday pay: contract may enforce 'use it or lose it'
principle
Although the provisions on carry over of holiday when an
employee has been off sick are currently the subject of much debate
(see this month's article on holiday and sick
leave), a recent case has confirmed that where there is no
such reason, holiday may be lost if the required notice is not
given before the end of the leave year. An employee's holiday year
ended on 31 March. On 6 March he requested payment in respect of
outstanding holiday that he was due before the end of the leave
year (he had no further work scheduled that month). His employer
did not pay it, reminding him that he was contractually required to
give 4 weeks' notice of holiday. It refused to pay him in lieu or
let him carry the holiday over into the next holiday year. The
employee claimed constructive dismissal.
The EAT had to consider whether an employer is
legally obliged to permit an employee to take all of his paid leave
within the leave year even if requested towards the end of the
leave year when it may not fit in with the staffing patterns of the
business. It concluded that statutory or contractual notice
provisions could operate to result in a worker losing the right to
take leave at the end of the leave year. The Stringer case
envisaged that leave could be lost at the end of the leave year as
long as the worker had actually had the opportunity to exercise the
right to take statutory annual leave (e.g. holiday provisions being
operated fairly during the course of the year). If notice
provisions are operated in an unreasonable, arbitrary or capricious
way this could lead to grievances and claims of constructive
dismissal. In this case, although the leave could be lost, another
Tribunal would have to consider whether the employer had been
reasonable in its refusal when the contract had provided for some
exceptions. Helpful for employers – but a refusal of holiday which
would result in leave being lost entirely should always be handled
with care.
