Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required.
Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or about any employment law related matter please do not hesitate to get in touch.
SICK LEAVE AND HOLIDAY PAY
The European Court of Justice has ruled that workers continue to accrue holiday that may be carried over to the next year whilst on sick leave.
Facts
The case concerned two categories of workers. In the first category was a worker who was absent from work on indefinite sick leave. During this sick leave she informed her employer that she wanted to take days of paid annual leave.
The second category of worker concerned those who, before their dismissal, were on long-term sick leave. They had not taken their paid annual leave during the leave year and claimed payment in lieu for this.
Legal Issues
The legal framework for the case was Directive 2003/88EC (the Working Time Directive). Article 1 of the Directive lays down minimum periods of annual leave. Article 7 of the Directive sets out that every worker shall be entitled to at least four weeks of paid annual leave which has been increased in the UK to 4.8 weeks and will rise to 5.6 weeks in April 2009. It also states that the minimum period of annual leave may not be replaced by an allowance in lieu other than where the employment relationship is terminated.
The appeals were before the House of Lords who referred the following questions to the European Court of Justice:
- Does Article 7(1) of the Directive mean that a worker on indefinite sick leave is entitled (i) to designate a future period as paid annual leave and (ii) to take annual leave, in either case during a period that would otherwise be sick leave?
- If a Member State exercises its discretion to replace the minimum period of paid annual leave with an allowance in lieu on termination of employment under Article 7(2) in circumstances in which a worker has been absent on sick leave for all or part of the leave year in which the employment relationship is terminated, does Article 7(2) impose any requirements or lay down any criteria as to whether the allowance is to be paid or how it is to be calculated?
The Court ruled that the Directive did not preclude national legislation providing that a worker on sick leave is not entitled to take paid annual leave during that sick leave. However, the Directive did not allow national legislation to extinguish the right to paid annual leave at the end of the leave year and/or carry over. This is so despite the worker being on sick leave for the whole or part of the leave year, and the reason for not being able to work continuing until the end of the employment relationship.
This ECJ decision is immediately binding on public sector employers. It is anticipated that the Working Time Regulations 1998 will be amended to permit carry-forward of statutory annual leave which is presently excluded.
Stringer and others v. HM Revenue and Customs (c-520/06)
DISCRIMINATION AND HARASSMENT
In English v. Thomas Sanderson Ltd [2008] EWCA Civ 1421 the Court of Appeal overturned a decision of the Employment Appeal Tribunal that the former employer of the claimant was not guilty of harassment on grounds of sexual orientation under the Employment Equality (Sexual Orientation) Regulations 2003.
Facts
The claimant alleged that he had been subjected to taunts in the form of sexual innuendo that implied he was homosexual. He was also subjected to name calling and comments about him in the employer’s house magazine. The people subjecting the claimant to this torment knew that he was not homosexual. The Employment Appeal Tribunal held that the abuse was a method of teasing the claimant.
The regulations set out that conduct which violates a person’s dignity or conduct that creates an intimidating, hostile, degrading, humiliating or offensive environment, on the grounds of sexual orientation is unlawful.
Legal Issue
The key issue to be decided was whether the teasing could be deemed harassment despite the fact that (a) the appellant was not homosexual, (b) his colleagues did not assume that he was, nor did they perceive him to be homosexual and (c) the appellant accepted that his colleagues did not believe him to be homosexual.
The Court of Appeal decided by a majority, to allow the appeal. It held that the fundamental fact was that the appellant was teased as being homosexual. It therefore did not matter whether he was actually homosexual or not. The teasing affected his dignity, it was degrading and created a hostile working environment, all of which were as a result of sexual orientation. The regulations were enacted to prevent these situations occurring and therefore the case did fall within them.
It was accepted law that the teasing of a man who was believed to be homosexual was unlawful. There was barely any difference between that scenario and the facts of this case, and there were significant policy reasons for why the two situations should not be thought of as different. It could not have been Parliament’s intention to require a person to declare their sexual orientation so to establish whether tormenting was on the “grounds of sexual orientation”.
RELIGIOUS BELIEFS
The Employment Appeal Tribunal in Islington London Borough Council v. (1) Ladele (Respondent) (2) Liberty (Intervener) (2008) UKEAT/0453/08 has overruled a decision of the Employment tribunal which found that a Christian registrar, who had refused to perform civil partnership ceremonies had been discriminated against, both directly and indirectly, and harassed on grounds of religious belief contrary to the Employment Equality (Religion or Belief) Regulations 2003. The EAT ruled that the Local Authority had not breached these regulations when it took disciplinary action against the registrar for not performing civil partnership ceremonies.
Facts
Ms Ladele was a strongly committed Christian. She had made it obvious that she would have difficulties in performing same sex marriage ceremonies as a result of her strong religious beliefs. The Civil Partnership Act 2004 came into effect in December 2005 whilst she was on sick leave. The Registrar General, who oversees the Register of Births, Deaths and Marriages gave a discretion to each local superintendant registrar to make appropriate arrangements for the coming into force of this legislation. The local superintendant registrar decided to share responsibility equally between the staff for conducting civil partnership ceremonies. Ms Ladele was not consulted about having to conduct these ceremonies. Two other registrars who had objections to carrying out these ceremonies were either offered alternative employment or left their positions. After refusing to carry out the ceremonies Ms
Ladele was disciplined and threatened with dismissal. The local authority argued at the tribunal that it had not discriminated but applied its policy equally to all registrars.
Legal Issues
The EAT found that the tribunal had confused the local authority’s reasons for treating Ms Ladele as it had done with Ms Ladele’s reasons for acting in the way she did. Ms Ladele’s complaint was actually founded on the fact that the local authority had not made an exception for her by not requiring her to perform the civil partnership ceremonies. The local authority disciplined her because she was refusing to perform lawful duties, not because of the religious views she held. There was no direct discrimination as the local authority had applied its policy equally to everyone. The tribunal also incorrectly identified comparators when reaching its decision. The EAT ruled that the correct comparator was another registrar who refused to carry out civil partnership duties because of antipathy to same-sex relationships, that antipathy not being the result of any religious
belief. Should that comparator have been subject to the same disciplinary process, there could be no direct discrimination on the grounds of religious belief contrary to the regulations.
The EAT did find that the actions of the local authority could be viewed as indirect discrimination towards Ms Ladele. Its policy of requiring all registrars to equally share the responsibility of civil partnership duties placed people with the beliefs of Ms Ladele at a disadvantage in comparison to those who did not have the same beliefs as her. However, the key question for the tribunal to consider was whether this indirect discrimination could be deemed a proportionate means of achieving a legitimate aim and therefore not contrary to the regulations. The EAT held that the local authority’s policy of requiring staff to act in a non-discriminatory manner was a legitimate aim and applying that policy equally to all registrars was proportionate.
As to Ms Ladele’s harassment claim, the tribunal had failed to properly consider why the local authority acted in the way it did. The EAT found that there had been no harassment.
DISABILITY DISCRIMINATION
In Child Support Agency (Dudley) v. R Truman UKEAT/0293/08, the Employment Appeal Tribunal has followed the decision of the House of Lords in Mayor and Burgesses of the London Borough of Lewisham v. Malcolm (2008) UKHL 43, a case decided in the context of housing, and confirmed that it does apply to employment cases.
Facts
Mrs Truman was employed by the Child Support Agency. She suffered long term back pain and was disabled within the meaning of section 1 of the Disability Discrimination Act 1995 (DDA). She came to an arrangement with her employer that she could work at home for four and a half days per week and go into the office half a day per week. She required specialist equipment to enable her to work at home. As a result of errors with the delivery of some of the equipment required, Mrs Truman telephoned the Child Support Agency’s Accommodation department. She raised her voice towards the person she spoke to, who subsequently made a formal complaint about Mrs Truman for bullying and harassment. This complaint of bullying and harassment was upheld.
The Child Support Agency went through a process of restructuring. Mrs Truman was advised that home work would no longer be available to her and she was told to seek medical retirement. However, this was refused. When home working ended at the Child Support Agency Mrs Truman brought a claim for disability discrimination in the employment tribunal and was successful.
Legal Issue
The employment tribunal found that Mrs Truman had suffered discrimination under the DDA in relation to the upholding of the bullying complaint and being pressured to apply for ill-health retirement.
The EAT upheld the Child Support Agency’s appeal on the basis that the Employment Tribunal had used an incorrect comparator. Following Malcolm
the comparator for the purposes of Mrs Truman’s claim was a non-disabled person who was in the same circumstances as Mrs Truman. For the purposes of the complaint against Mrs Truman for bullying and harassment, the correct comparator was a non-disabled person who had abused a person on the telephone. When using this comparator for the bullying complaint, the tribunal held that the same decision would have been made, therefore Mrs Truman had not been treated any differently in this regard. The claim for discrimination concerning the complaint therefore failed. The appropriate comparator for the medical retirement issue was a non-disabled employee who was unable to work full-time in the office. The employment tribunal had not used the correct comparator for this issue and it was referred back to the employment tribunal along with the issue of reassessing the compensation awarded to
Mrs Truman.
STATUTORY DISMISSAL AND DISCIPLINARY PROCEDURE
In Zimmer Ltd. V. Brezan UKEAT/0294/08 the EAT has confirmed that a step 1 letter should tell an employee if they are at risk of dismissal.
Facts
Mr Brezan was shortlisted for a promotion with his employer. On this occurring, he raised concerns that as his new role was largely office based, he would lose the benefits of mileage payments which his employer gave him for expenses incurred whilst travelling in his job. His employer then investigated his mileage payments and he was informed that a disciplinary hearing would take place. After further disciplinary meetings Mr Brezan was dismissed. The employment tribunal held that his dismissal was automatically unfair as a result of not complying with step 1 of the statutory Standard Dismissal and Disciplinary procedure.
Legal Issues
Schedule 2 of the Employment Act 2002 sets out a statutory dismissal and disciplinary procedure which employers are obliged to follow. The employment tribunal held that Mr Brezan’s dismissal did not comply with step 1 of the statutory procedure because the step 1 letter failed to state that Mr Brezan was at risk of being dismissed. Zimmer Ltd argued that as its disciplinary procedure had been attached to the email asking him to attend a disciplinary meeting, Mr Brezan had actually been informed that he was at risk of being dismissed.
The EAT held that an employee had to be told that he was at risk of dismissal together with the reasons for this. The purpose of a step 1 letter was to assist the employee in understanding that he could be dismissed. This gives the employee a greater chance to respond to the situation facing him in the step 2 meeting. The fact that the email had an attachment which contained the disciplinary policy did not go far enough in this case, though it is open to tribunals to decide if sufficient information has been given to an employee regarding their dismissal in individual cases.
The statutory dismissal and grievance procedures will be abolished on 6 April 2009 and will be replaced by a new, non-statutory Acas Code. However grievances and dismissal proceedings commencing before 6 April will still be covered by the statutory 3 step procedures.
EVENTS
Russell-Cooke have teamed up with the Directory of Social Change to run a series of seminars on Employment & Property legal issues for Charities
The Employment Law Club
Inaugural meeting: Thursday 19 March 2009
Keep in the loop with access to the latest expertise
The employment law Group (ELG): the only one of its kind. The ELG is a brand new service provided by Directory of Social Change together with Russell Cooke LLP Solicitors. It is specially designed to provide up-to-date information for senior managers or HR professionals and anyone who is responsible for employment matters within their charity. The groups offers an annual subscription for members to meet five times a year for a half day workshop and networking lunch to obtain knowledge and discuss concerns around Employment Law issues together with a free initial telephone consultation with a specialist employment lawyer from Russell-Cooke.
For more information on the Property and Employment Clubs please follow this link http://www.dsc.org.uk/Training/Law
Wednesday 1 April 2009
GOVERNANCE FOR THE ARTS CONFERENCE
An essential event for all those involved in the arts at management level. This conference is being run in conjunction with Directory for Social Change and includes sessions on:
> Developments in Governance
> Employment issues in the current climate
> Dealing with difficulties on your Board
> Money and solvency
> Managing your property and assets
> An introduction to intellectual property issues
>Corporate Partnerships, Trading and contracts
> Managing Organisational Change
> The Duties of a Trustee
For more details and to book online please go to www.dsc.org.uk/artsconference
Thursday 2nd July 2009
THE TRUSTEE CONFERENCE 2009
The Trustee Conference brings together leading legal, financial and fundraising figures within the sector to offer trustees and senior managers practical advice and innovative solutions to the challenges ahead. The seminar programme has been specifically designed to deal with the problems posed by the current economic climate. Running alongside our established strands are sessions which aim to address funding, risk and accountability issues and others which demonstrate how to get the most out of assets such as staff and property.
For more details please go to: http://www.russell-cooke.co.uk/downloads/Trustee_Conference_2009.pdf
Contact us:
The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
Putney,
London
SW15 6AB
Tel: 020 8789 9111
www.russell-cooke.co.uk
This material does not give a full statement of the law. It is intended for guidance only, and
is not a substitute for professional advice. No responsibility for loss occasioned as a result
of any person acting or refraining from acting can be accepted by Russell-Cooke.
© Copyright: Russell-Cooke,
The Employment Team at Russell-Cooke
Anthony Sakrouge (Partner) – 020 8394 6504 Anthony.Sakrouge@russell-cooke.co.uk
Alex Bearman (Partner) – 020 8394 6524 Alex.Bearman@russell-cooke.co.uk
Fudia Smartt (Solicitor) – 020 8394 6525 Fudia.Smartt@russell-cooke.co.uk
Emma O'Byrne (Solicitor) – 020 8394 6537 Emma.O'Byrne@russell-cooke.co.uk
Specialists in advising charities, not for profits and public bodies
Jane Klauber (Partner) – 020 8394 6483 Jane.Klauber@russell-cooke.co.uk
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