PDF FILE - Thompsons Solicitors

thompsons.law.co.uk

PDF FILE - Thompsons Solicitors

a brief overview ofSICK ANDAccording to the Charteredemployee can (in someFor instance, in Harlow -v-provisions preventing themInstitute of Personnel andcircumstances) claim betweenGeneral Healthcare Group Ltdfrom accruing or taking holidayDevelopment, sicknessabsence costs employersabout £567 per employeeevery year. This equatesto about nine working daysfor every member of staffper year.Hardly surprising, then, thatmanaging sickness absence atwork often leads to misunderstandingsand recriminations,sometimes even dismissal.In this article, Iain Birrell, asolicitor from Thompsons’Employment Rights Unit inNewcastle, highlights some ofthe most common scenariostwo and four weeks’ pay at anemployment tribunal.CAN THE EMPLOYERMAKE CONTACT DURINGSICK LEAVE?Some employees feel harassedby their employer when theyare on sick leave because theyare in contact so often. Others,however, complain that theyfeel abandoned because theiremployer never gets in touch.There are no hard and fastrules, but employers need to usetact and common sense ifsomeone is off sick. Likewise,(2002, All ER (D) 84) theemployee’s grievance was puton ice by the employer due tosick leave. The EAT said this wasfine. However, in Hill -v-Staffordshire (2003, All ER (D)310) the EAT upheld theemployer’s decision to continuewith disciplinary proceedingswhile the employee was off sick.WHAT HAPPENS TOHOLIDAYS ON SICKLEAVE?If an employee falls sick duringa period of holiday, they cannotclaim that day back from theirentitlement on sick leave, theyare entitled to paid holidayat the full rate - a valuablebenefit if sick pay has run out,or been reduced.Trade union advisors should becareful to ensure that employersusing a measure known as theBradford Factor for identifyingshort term absence do not treatthis as generating a separatespell of absence.CAN THE EMPLOYERREFUSE TO ALLOW ARETURN TO WORK?Sometimes employers refuse tofacing trade union advisorstrade union advisors need to beemployer as sick leave (unlessallow an employee to return towhose members findalert to the fact that an employertheir contract says so).work until the occupationalthemselves in the firing line.may well be harassing anHowever, does statutoryhealth doctor has certifiedWHAT INFORMATIONSHOULD EMPLOYERSPROVIDE?Although employers are notobliged to offer a sick payscheme, they have to giveemployee if he or she is ringingevery day asking when theperson is going to return to work.Trade unionists should, ideally,negotiate a sickness absencepolicy governing when and howoften the employer can makeholiday entitlement accruewhile a worker is on sick leave?The EAT said that it did in thecase of Kigass but the Court ofAppeal has just overruled it inInland Revenue -v- Ainsworth(see page 8). Unfortunatelythem as fit to do so, eventhough their own GP has giventhem the all-clear.If that happens, the employeeshould be paid at their normalrate (as opposed to sick pay) asthe employee is being preventedemployees details of anycontact with someone on sickthis decision is not entirelyfrom working by the employer.contractual terms or provisionsabout incapacity for work dueto illness or personal injury.These must be given in writingwithin two months of starting aleave. It should also determinewhether the employer willproceed with disciplinary orgrievance issues during anemployee’s sick absence –clear, but it appears thatentitlement to holiday may besuspended during periods oflong term sick leave. The unionis appealing the decision.WHEN DOES THEDDA APPLY?As the period of sicknessabsence increases, so does thenew job. If the employer fails toprovide this information, anan area as yet unresolved bythe law.Remember, though, if anemployee's contract contains nopossibility that the person willbe protected under the6 FEATURE THOMPSONS SOLICITORS Labour&European Law Review


sickness at workTIREDDisability Discrimination Act1995 (DDA). If the Act doesapply, the person’s absence onlong term leave must bediscounted for certainsituations (such as redundancy).In addition, the employer mayhave to make some reasonableadjustments to facilitate areturn to work. Two recent casesillustrate the point.In Archibald -v- Fife CountyCouncil (2004, IRLR 651; LELR92) the House of Lords said thatthe employer should have movedrequirement will be removed bythe end of 2005 under a billgoing through Parliament).To constitute a personalinjury, work-related stress has tohave been something that anemployer could have reasonably“foreseen”. This can be verydifficult to prove (see theconjoined cases of Hartmanand ors, LELR 99).WHAT ABOUTSUSPENSION?It is not uncommon for aleave. Whether this wouldamount to a breach of humanrights or the duty of mutualtrust and confidence willdepend on the facts of the case,but one thing is certain - it is anincreasingly common practice(McGowan -v- Scottish Water,2005, IRLR 167; LELR 97).HOW DOES SICK LEAVEIMPACT ONREDUNDANCY?Attendance and/or sicknessabsence is often a criterion inpenalise employees for certainabsences such as pregnancyrelated or disability relatedillness. These periods shouldtherefore be discounted.ARE EMPLOYEESENTITLED TO A PERIODOF PAID NOTICE?Employees on sick leave areentitled to be paid at their fullcontractual rate for theduration of their notice period,whether or not their sick payhas run out. They can bring athe employee to a vacant postsuspension to lead to a periodredundancy selection. This isclaim for unlawful deduction ofeven if it was more senior to herof stress-related sick leave.not unreasonable, but it iswages if the employer fails toprevious one and even if thereGenerally, however, it is not indiscriminatory for employers topay for the period of notice.was a better candidate.the interests of the employee toIn Meikle -v- NottinghamshireCounty Council (2004, IRLR703; LELR 93), the Court ofAppeal said that the duty tomake reasonable adjustmentscould include a duty to payemployees during sick payperiods (even if they are onlyentitled to reduced pay or SSP),if the failure to carry outreasonable adjustments causedthe sick leave in the first place.To constitute a “mentalimpairment” under the DDA,the condition must be clinicallywell-recognised by a body suchgo off on sick leave. Sick payusually runs out at some point(or future entitlement to it mayreduce), leaving the employeewithout an income unless theycan claim benefits. By contrastthe employer is usually obligedto provide full pay during theperiod of the suspension.CAN EMPLOYERS SPYON EMPLOYEES ONSICK LEAVE?The simple answer is yes. If anemployer thinks his or heremployee is swinging the lead,as the World Healththey are entitled to carry outOrganisation (although thissurveillance of them during sickPicture: Justin Tallis/reportdigital.co.ukTHOMPSONS SOLICITORS Labour&European Law Review FEATURE 7


Commissioners of Inland Revenue -v- Ainsworth & orsNO SUCH THING ASA FREE HOLIDAYMost workers (and allentitlement to holiday paysense to argue that employeesPicture: Paul Box/reportdigital.co.ukemployees) are entitled tounder the Working Timewho had been dismissed couldfour weeks’ paid holidayRegulations or can they alsobe entitled to paid holiday,under the Working Timemake a claim for unauth-although it might produceRegulations (WTR) 1998. Butorised deduction of wagessome unfortunate anomalieswhat happens whenunder the Employment Rights(see comment).someone has been off workon sick leave for any periodof time – are they stillentitled to holiday pay?The Court of Appeal hasdecided in Commissioners of InlandRevenue -v- Ainsworth and ors thatwhen the entitlement to sick payAct 1996, as the EAT decidedin List Design Group Limited-v- Douglas (2002, ICR 686)?WHAT DID THE COURTOF APPEAL DECIDEABOUT KIGASS?The Court of Appeal agreed withWHAT DID THE COURTDECIDE ABOUTLIST DESIGN?Regulation 30 of the WTRallows workers to bring a claimfor non-payment of holiday paywithin three months of when itDesign were correct, it wouldnot be possible to make a claimfor statutory holiday pay underregulation 30. This also meantthat the EAT decision inCanada Life Ltd -v- Gray andhas run out, workers cannot thenthe Inland Revenue that it didshould have been made.anor (LELR 89) was also wrong.claim holiday pay, whether or notthey are still officially “on thebooks” of their employer. PCSnot make sense for a worker whohad been off work for possibly ayear or more as a result of someHowever, section 23 (1) of theEmployment Rights Act (ERA)allows workers to bring claimsCOMMENTAs the court itself pointed out,instructed Thompsons on behalfserious illness to then tell his oragainst unauthorised deductionsthis decision will lead toof its members.her employer that they werefrom wages, but only if there hassignificant inequalities forWHAT DID THE COURTOF APPEAL HAVETO DECIDE?The Court of Appeal had toanswer two questions:taking leave. Leave from whatexactly, it asked?.It also agreed with theRevenue that, as the purpose ofthe regulations was to promotethe health and safety ofbeen a series of them.Mr Ainsworth had successfullyrelied on the ERA and theInland Revenue challenged thedecision in List Design thatworkers can bring a claim forworkers. It will mean, forinstance, that someone who isoff sick for three months (sayJanuary to March) but whoreturns to work and is dismissedthree months later can claim■ Was the employment appealtribunal (EAT) right to decidein Kigass Aero Componentsworkers, it made no sense forsomeone who was not at workto claim that they needed tonon-payment of holiday payunder the ERA.Again, the Court of Appealholiday pay for six months, butsomeone off sick for the wholesix-month period cannot.Limited -v- Brown (2002, ICRtake a break from it. It wouldagreed with the employers thatIt accepted, however, that “to697), that employees on longamount to nothing less than aParliament cannot havethe extent that it may produceterm sick leave who hadwindfall to pay them for it.intended to circumvent thesome unfortunate anomalies inexhausted their right to sickIt decided, therefore, thatWTR which were introduced tosickness cases, it may meritpay were still entitled to claimholiday pay, whether or notworkers on long-term sick leavewho were still in employment“provide a single and exclusiveregime for the enforcement ofconsideration of legislativeamendment at an early date.”they were still in employment?could not claim holiday pay. Itthe new statutory rights”.The union will appeal the■ Do workers have to enforcefollowed that it did not makeIt concluded that if Listdecision8 EDITORIAL THOMPSONS SOLICITORS Labour&European Law Review


Hoyland -v- Asda StoresMAKINGAMENDSThe law says that during paidmaternity leave, a woman isentitled to all the same termsand conditions had she notbeen away from work, withthe exception of pay (definedas “wages or salary”).But do bonuses fall under thisheading? The employmentappeal tribunal (EAT) has justthis and was surprised whenshe received her bonus inFebruary 2003 to find that ithad been reduced from£189.47p to £94.48 because ofher absence on maternity leave.WHAT DID THETRIBUNAL DECIDE?Relying on the lead case ofdiscretionary (and therefore sexdiscrimination), or contractual(governed by the Equal PayAct). Although the bonus wasdescribed as discretionary in thescheme, it had never actuallybeen withheld from anyone.The EAT said it was thereforedue under her contract. Thedecisive period for eligibilitydid not constitute a “detriment”under the Employment RightsAct 1996 because the Actexplicitly excluded “terms andconditions aboutremuneration”.Article 141: Finally MrsHoyland argued that she wasentitled to be credited for aproportion of the bonus for thesaid – in the case of Hoyland -v-Gillespie -v- Northern Healthwas the period when it accruedwhole 18 weeks of ordinaryAsda Stores – that they do. As aresult, employers are entitled toand Social Services Board(1996, ICR 498), the tribunal– in this case during the periodof maternity leave – not thematernity leave (or else the 14-week period stipulated byreduce them during the periodthat the woman is on paid leave.said that the bonus was part ofher “wages or salary” and wasdate when it was paid.Although on her return fromEuropean law). The EATdismissed this argument sayingWHAT WERE THE FACTSOF THE CASE?Mrs Hoyland returned to workas an events co-ordinator forAsda at the beginning ofDecember 2002, after a periodtherefore a contractualpayment. They said it wasdesigned to reward attendanceat work, and was paid inrecognition of work undertakenby employees as a whole.However, it said that theleave, the legislation says shewas entitled to be treated asthough she had never beenaway, the court said that is not“the same as saying that shemust be paid for the period ofthe maternity leave as if shethat Asda was not “anemanation of the State” andwas therefore not directlyaffected by the treaty. It alsosaid it flew in the face of all thecase law.of ordinary and additionalemployer could not deduct thehad never been on leave.”maternity leave.bonus for her two-week period ofMrs Hoyland was thereforeDuring 2002, Asda hadoperated a bonus scheme tocompulsory leave (as required bythe Pregnant Workers Directive)only entitled to be paid a proratedamount of the bonus forreward staff for theirand awarded her the additionalthe time she was at work incontribution to the financialprincely sum of £5.20.2002 (plus the fortnight ofperformance of the businessduring the year. The rules saidthat the payment would be proratedto reflect part-timeWHAT DID THEEAT DECIDE?The EAT agreed with thecompulsory maternity leave).Pregnancy RelatedDetriment: Employees alsohave the right not to suffer anyemployment and absences oftribunal. It came to thedisadvantage (or detriment) byeight consecutive weeks ormore during the year, includingfollowing conclusions:Sex discrimination: Thistheir employer to do with beingpregnant or taking maternitymaternity leave.Mrs Hoyland did not knowargument hinged on whetherthe bonus payment wasleave. The EAT said, however,that the reduction of the bonusPicture: John Harris/reportdigital.co.ukTHOMPSONS SOLICITORS Labour&European Law Review EDITORIAL 9


Lucas -v- Chichester Diocesan Housing Association LtdBlowingthewhistleDaniels) that Ms Mercer wasusing money from one projectto help support the other. MrDaniels brought her concerns tothe attention of Ms Mercer,after which Ms Lucas’ hours(and her pay) were reduced on30 June.The Public InterestDisclosure Act 1998 protectsemployees who aredismissed after blowing thewhistle on their employers,as long as the disclosuresare made in good faith, andnot out of spite.In Lucas -v- Chichester DiocesanHousing Association Ltd (IDS Brief779), the employment appealtribunal (EAT) has overturnedthe tribunal decision and saidthat Ms Lucas’ main motivationwas to raise concerns aboutpossible financial impropriety.WHAT WERE THEBASIC FACTS?Ms Lucas was hired to work for18 months on a project beingfunded by Brighton and HoveCorporation but managed bythe Housing Association toraise awareness of informationtechnology locally.The Housing Association subcontractedthe work to anotherconsultant, Jill Mercer who, inturn, appointed Ms Lucas as anICT co-ordinator, ostensibly on aself-employed basis. Ms Mercerwas also responsible foranother project funded by theCorporation – World Web WiseOn 19 June 2003 Ms Lucasraised concerns with a directorof the Housing Association (MrShe raised her concerns againon 3 July, but this time with thedeputy project director of theCorporation. Two weeks later shewas dismissed by Ms Mercer.Ms Lucas, who had less than12 months’ service, claimedautomatic unfair dismissal formaking a protected disclosure.The tribunal decided that.although her allegations werewell founded, the statementswere made to spite Ms Mercerbecause of the reduction in herhours (rather than in the publicinterest), and were nottherefore made in good faith.She also claimed wrongfuldismissal because she had notbeen paid for the whole of thefixed-term contract. The tribunalupheld her claim of wrongfuldismissal, but only awarded herone month’s pay in lieu of notice.WHAT WAS THE BASISOF THE APPEAL?Ms Lucas appealed against thatdecision, saying that thechronology of events showedthat the disclosure had nothingto do with the reduction in herhours. She also argued that, asshe had been engaged on an18-month fixed-term contract,terminated after six months,that she was entitled to 12months’ damages.For its part, the HousingAssociation said the decisionwas not perverse and that MsLucas could not meet the highthreshold required for aprotected disclosure. As for thecontract, it said that was notfor a fixed term, as Ms Lucasclaimed, but operated on arolling month to month basis,terminable on a month’s notice.WHAT DID THEEAT DECIDE?The EAT said that the correctapproach was to follow theprovisions laid down by theCourt of Appeal in Street -v-Derbyshire Unemployed WorkersCentre (LELR 92). Basically itsaid that tribunals have to usetheir common sense to decidewhether the main reason formaking the disclosure is to righta wrong, or if the person has anulterior motive (such as spite).In this case, the EAT did notthink Ms Lucas was motivatedby personal antagonism to MsMercer. It pointed to the factthat, although her hours hadbeen cut on 30 June, she madethe first disclosure 11 daysbefore that. It noted that theHousing Association had notmentioned anything about MsLucas being motivated by spitein its Notice Of Appearance (itswritten reply to Ms Lucas’tribunal claim), nor whenthey cross examined her atthe hearing.As for her contract, the EATsaid that it was not for a fixedterm and could be terminatedon a month’s notice. It wasreasonable for the tribunal tofix the period of notice at onemonth and to award damageson that basis.THOMPSONS SOLICITORS Labour&European Law Review EDITORIAL 11


THOMPSONS IS THE LARGEST SPECIALISED PERSONALINJURY AND EMPLOYMENT RIGHTS LAW FIRM IN THE UKWITH AN UNRIVALLED NETWORK OF OFFICES ANDFORMIDABLE RESOURCESLELR AIMS TO GIVE NEWS AND VIEWS ONEMPLOYMENT LAW DEVELOPMENTSAS THEY AFFECT TRADE UNIONS AND THEIR MEMBERSTHIS PUBLICATION IS NOT INTENDEDAS LEGAL ADVICE ON PARTICULAR CASESDOWNLOAD THIS ISSUE AT www.thompsons.law.co.ukTO RECEIVE REGULAR COPIES OF THE LELREMAIL lelrch@thompsons.law.co.ukCONTRIBUTORS TO THIS EDITION Joanne BeillIain BirrellCaroline ClarkeNicola DandridgeJoe O'HaraVictoria PhillipsEDITOR ALISON CLARKEDESIGN & PRODUCTION REXCLUSIVEPRINT www.talismanprint.co.ukILLUSTRATIONS BRIAN GALLAGHERPHOTOGRAPHS REPORT DIGITALFRONT COVER JUSTIN TALLIS/REPORTDIGITAL.CO.UKHEAD OFFICELEEDSCongress House, Great 0113 2056300Russell Street, LONDON020 7290 0000LIVERPOOL0151 2241 600BELFAST028 9089 0400MANCHESTER0161 8193 500BIRMINGHAM0121 2621 200MIDDLESBROUGH01642 554 162BRISTOL0117 3042400NEWCASTLE-UPON-TYNE0191 2690 400CARDIFF029 2044 5300NOTTINGHAM0115 9897200DURHAM0191 3845 610PLYMOUTH01752 253 085EDINBURGH0131 2254 297SHEFFIELD0114 2703300GLASGOW0141 2218 840SOUTH SHIELDS0191 4974 440HARROW020 8872 8600STOKE ON TRENT01782 406 200ILFORD020 8709 6200VISIT US AT www.thompsons.law.co.ukEMAIL US AT lelrch@thompsons.law.co.uk“LAW SUIT”BYBRIAN GALLAGHERbrian@bdgart.comwww.bdgart.comTHOMPSONS (No.15) © Brian SOLICITORS Gallagher & Thompsons Labour&European Solicitors Law Review IN THE NEWS 319926/0605/1097

More magazines by this user
Similar magazines