Employment Update - 26 February 2010

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...