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Employment Law Newsletter - Autumn 2009
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Workers can reclaim holidays lost
to sickness
The European Court of Justice (ECJ) has recently handed down its decision in Pereda
v Madrid Movilidad SA, a Spanish case. The ECJ found that an employee who does not wish
to take annual leave during a period of sickness absence must be allowed to take the
leave at some other time, even if this means that it needs to be carried over to the
following year.
The ECJ considered that the purpose of the entitlement to paid leave is to enable the
worker to rest and enjoy a period of relaxation and leisure. Sick leave on the other hand
is given so that the worker can recover from being ill.
This case means that employees who fall sick whilst on leave could claim back their
entitlement, (although this case concerned an employee who fell sick before his leave).
Public sector workers can gain the benefit of Pereda with immediate effect. Workers
in the private sector may have to wait until the Working Time Regulations 1998 is amended
by national law. Please note that this case only applies to Working Time Regulation holiday
entitlement.
National minimum wage update
With effect from 1 October 2009 national minimum wage (NMW) rates will increase
as follows:
• Standard (adult) rate (workers aged 22 or over): £5.80 (rising from £5.73).
• Development rate (workers aged between 18 and 21): £4.83 (rising from £4.77).
• Young workers rate (workers aged under 18 but above the compulsory school age that
are not apprentices): £3.57 (rising from £3.53).
Where an employer provides a worker with accommodation, the cost of that
accommodation can count in part towards the employer’s liability to pay the NMW,
but there is an upper limit on the amount that may be offset (the accommodation offset).
This will rise from £4.46 per day to £4.51.
Another change to the NMW which will become effective on 1 October 2009 is that
it will be unlawful for service charges, tips and gratuities processed through the payroll
to count towards the employer’s payment of the national minimum wage. The British Hospitality
Association (BHA) has published a Code of Practice on Discretionary Tips
and Service Charges to assist employers in complying with this.
Increase in statutory redundancy pay
It was announced in the 2009 Budget that a week’s pay for the purposes of calculating
statutory redundancy pay will be increased to £380 (resulting in a maximum potential
payment of £11,400).
This will come into force on 1 October 2009. The annual uprating of this figure in February
2010 will be suspended, and the amount will remain unchanged until February 2011.
It’s lawful to retire at 65
The High Court has ruled on the long awaited Heyday case, which was a challenge brought
by Age Concern and Help the Aged against the default retirement age of 65. This is good
news for employers, especially for those employers who operate a retirement policy at 65.
However, the Government is set to review the default retirement age in 2010, so its likely
that this debate will continue for some time. We will keep you updated on this.
Fit note vs. Sick Note
Government plans to introduce a fit note to replace the current sick note are expected
to be introduced in April 2010.
The fit note if introduced will be electronic rather than hand written. It is designed to help
more people stay in work rather than drift into long term sickness. The current sick note
system gives no consideration as to whether an employee is fit to perform certain duties.
Under the new system a GP will have the opportunity to give their view on what the individual
employee can do, despite their illness. Likewise, this enables employers to consider to what
extent their work can be adapted to hasten a return.
It is estimated that some 172 million working days were lost due to absence in 2007,
at a cost of £13 billion to employers. Most of these absences lasted more than 4 weeks.
Motive is irrelevant in direct race
discrimination case
In Amnesty International v Ahmed the EAT confirmed that an employer that treats
an employee less favourably on racial grounds cannot escape liability for direct
discrimination simply because it has a benign motive for its actions. Therefore,
employers should be aware that an unconscious motive or act could in some
circumstances amount to less favourable treatment on discriminatory grounds.
In this case Amnesty declined to promote an employee to the position of Sudan
researcher because of her northern Sudanese ethnic origin. They were concerned that
appointing someone of her ethnic origin would compromise impartiality and expose
her to safety risks.
Vanity Fair?
Ms Dean was employed by Abercrombie and Fitch in their Saville Row branch. The company
operates a strict look policy which stipulates what uniform should be worn, how long hair
and nails should be, etc. Ms Dean had a prosthetic arm and it was agreed that she could wear
a cardigan to cover the link between her arm and the prosthesis. Ms Dean claimed that she
was instructed to remover her cardigan as it did not comply with their strict look policy.
She was later told to leave the shop floor and work in the stock room.
MS Dean issued tribunal proceedings under the Disability Discrimination Act 1995 and
was awarded £7,800 for injury to feelings. The tribunal found that the act was unlawful
harassment.
An increasing number of employers now have look policies. They are most commonly found
in the retail, beauty, fashion and hospitality industries. Such policies are lawful provided
that they are not discriminatory. However, such policies carry risks and can be difficult
to justify.
United Kingdom Supreme Court
From 1 October 2009 the Supreme Court replaces the appellate committee of the House
of Lords as the highest court in the UK. The Court will hear appeals on arguable points of law
of the greatest public importance, for the whole of the United Kingdom in civil cases, and for
England, Wales and Northern Ireland in criminal cases.
Additional Paternity leave
The Government has announced plans to introduce additional paternity leave for parents
of babies due on or after 3 April 2011. This new right will apply where the mother ends
her maternity or adoption leave early, and it will enable the father in effect, to take the
remainder of that leave. Namely, they will be able to take 3 months paid at the statutory
rate and 3 months unpaid. The proposal to increase Statutory Maternity Pay from 39 weeks
to 52 weeks is still on hold.
Messing with the Law
Staff from the legal firm, Flint Bishop LLP of Derby came to the rescue of local charity,
The Arkwright Society of Cromford Mill this week by giving up their weekend to help clear
out one of the Grade I listed buildings on the site. Over the last 30 years the building has
been used as a storage area for machinery and building materials but now the space
is desperately needed for a temporary exhibition.
Sarah McLeod, Director of the Arkwright Society said “We have extensive plans to create
a World Heritage Site Gateway on the site but this will take at least two years to complete
and open to the public. In the meantime we want to ensure that the public have an
opportunity to see the plans for themselves so we really needed the space cleared for
a temporary exhibition. The exhibition will not only inform people about the history of the
Mill but equally as important, it will give the Society an opportunity to consult with the
public about the new development. Flint Bishop have done a marvellous job in extremely
dusty and dirty conditions. We are very grateful”
Lynsey Bowen from Flint Bishop added “It is so important for the people to realise the
importance of the site and the ground breaking engineering that happened there under
Richard Arkwright. It will be great to see the temporary exhibition completed and
educating the public.”
The temporary exhibition is planned to open in the Spring 2010. Further details can
be obtained from the Arkwright Society at info@arkwrightsociety.org.uk
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