Employment Notepad -January 2010

 

1. Holidays - Can an employer refuse it?

In Lyons v Mitie Security Ltd the EAT considered whether an employer may refuse an employee's request to take holiday in accordance with either statutory or contractual notice requirements even if this would prevent the employee from taking their full annual entitlement.

Mr Lyons, a security officer, clearly had a strained relationship with his employer. He raised numerous grievances during his employment in respect of jobs being cancelled at the last minute and shortfalls in holiday pay. On 6 March he was told he had no further work scheduled for that month and he sought to be paid 9 days' accrued holiday before the end of the leave year, 31 March. His employer refused on the basis he had failed to submit the correct holiday request form and his contract of employment provided that any holiday request "wherever possible should be submitted at least 4 weeks prior to the commencement of the holiday". His contract also provided that holiday not taken in the year it accrued could not be carried forward and would be forfeited.

The EAT concluded that the right to holiday was not an inalienable right and was subject to notice provisions either as specified in an employee's contract of employment or the statutory notice provisions contained in Regulation 15 of the Working Time Regulations 1998 ("the Regulations"). The EAT acknowledged the importance for employers to have mechanisms to deal with holiday request, in particular, at the end of a leave year where many employees might suddenly decide to request holiday; they also acknowledged the importance that these mechanisms be applied in a uniform manner and should not be used in an unreasonable, arbitrary or capricious way simply to deny an employee their holiday.

The EAT's decision appears to give employers a right to refuse holiday requests not submitted in accordance with notice provisions even should result in an employee not being able to take their holiday entitlement. However, we would advise employers to carefully consider refusing an employee's request unless they have valid reasons for doing so and that in any event they treat all holiday requests the same.

Moving forward we recommend employers confirm the notice provisions for requesting holiday and the importance of complying with these, particularly where the leave year is coming to an end. Employers should also consider whether revisions to employees' contracts of employment need to be made.

This decision, along with Stringer and Pereda, confuses the issue of holiday entitlement under the Regulations further and highlights the need for the Regulations to be revised in order to address the practicalities of holiday entitlement generally.

 

2. Disability discrimination - Time limits

The Court of Appeal upheld the EAT's decision in Chief Constable of Lincolnshire Police v Caston that the three month time limit normally applied for bringing claims of discrimination should have been extended in respect of Ms Caston's claim.

Whilst the Court of Appeal stressed that granting an extension should be the exception and not the rule, it held it was within the Tribunal's discretion to extend the time limit based on what they considered to be just and equitable on the facts before them.

The Claimant, Ms Castron, who suffered a breakdown as a result of alleged bullying at work, became confused about the dates surrounding the act of discrimination she sought to complain to the Tribunal about. This led to her representatives presenting her claim outside the three month time limit.

Employers should be aware of the Tribunal's discretion to extend the normal three month time limit and should not automatically assume they can simply resist claims on the basis they have been brought out of time.

 

3. IVF - Same protection as pregnancy

In Sahota v Home Office and Pipkin the EAT considered whether employers should treat employees undergoing IVF treatment the same as they would pregnant employees.

Obviously pregnancy is a condition that affects only women; accordingly any discrimination against a woman by reason of her being pregnant will constitute direct sex discrimination and there will be no requirement for a male comparator. Often the need to identify a comparator in discrimination claims can be a difficult hurdle to overcome and is often a reason why discrimination claims do not succeed.

Whilst the EAT dismissed Mrs Sahota's claim for numerous reasons, primarily because the acts complained of were not linked to her being a woman or undergoing IVF, it went on to consider what kind of protection should be afforded to employees undergoing IVF. In brief it held that:-

• A woman should be entitled to the same protection as a pregnant woman for the period between the implanting of the fertilised ova and thereafter unless the implantation fails, in which case the period of 14 days after the implantation fails would be considered to form part of the protected period.
• The EAT disagreed with Mrs Sahota's claim that the entire time a woman is undergoing IVF should be treated as pregnancy. It held that a woman undergoing IVF treatment generally (attending appointments, absences from work) would not be protected to the same extent as a pregnant woman. Although if she was discriminated against simply by reason of her undergoing IVF, this could constitute sex discrimination. For example, if she were treated less favourably for being absent in order to undergo the treatment, the question the Tribunal would ask is "would a man have been treated the same had he been absent from work?"

Clearly, with infertility affecting so many couples, it is likely employers will need to deal with these issues at some stage. Given the complexity and the potential risk of discrimination being inferred, we would advise employers to seek legal advice and consider implementing a written policy dealing with absence for infertility treatment.

 

4. Is it lawful to retire dentists aged 68?

The ECJ considered in Petersen v Berufungsaussschuss für Zahn für den Bezirk Westfalen-Lippe whether a compulsory retirement age of 68 for dentists working in Germany's equivalent of the NHS constituted age discrimination or whether it could be justified on the basis that in having a maximum working age it protected patients from the declining performance of dentists aged over 68 years.

The Equal Treatment Directive is European legislation which protects employees from direct and indirect discrimination, in particular, by reason of their age. However, the Directive also provides where there is a difference of treatment because of an employee's age this treatment may (in limited circumstances) be "objectively and reasonably justified by a legitimate aim" if "the means of achieving that aim are appropriate and necessary".

The ECJ agreed the protection of patients was a legitimate aim and that an upper age limit might be a legitimate method of achieving that aim. However, the upper age limit did not apply universally to those dentists within the health service sector and some dentists were entitled to work, despite being over 68, for example, as holiday cover or to gain twenty years service and there was no upper limit for dentists within the private sector, the ECJ rejected the Government's reasons for justifying the upper age limit.

This case may be relevant later this year when the UK Government come to review the UK's current default retirement age of 65.

 

5.Disability discrimination

The EAT in Garrett v Lidl Ltd considered whether the supermarket chain Lidl was entitled to move a disabled employee to another store where it would be able to put in place reasonable adjustments and discharge its obligation under the Disability Discrimination Act 1995.

Whilst Mrs Garrett claimed the reasonable adjustments should have been made at the store where she actually worked, the EAT disagreed on the basis that the two stores were both close to Mrs Garrett's home and her hospital and her contract of employment contained a relocation clause.

Whilst the EAT's decision was specific to the facts of this case, employers should not discount relocating a disabled employee if there are other branches or offices close by and which might better suit a disabled employee's needs.

 

6. Snowed under

The recent heavy snowfall resulted in much of Britain grinding to a halt. Given the likelihood of more adverse weather, employers should take the opportunity now to consider how best to deal with the situation before it next arises.

Whilst there is no legal duty for employers to pay employees who are unable to carry out the work they are employed to carry out (unless their contract of employment confirms otherwise), employers should be aware of the following issues:

• Staff morale and those who are genuinely unable to attend work or need to leave early and who may feel penalised having their pay docked.
• If you do make exceptions and pay some staff despite being absent you should treat all staff equally and in a non-discriminatory manner.
• Does the employee's contract of employment or staff handbook entitle an employee to be paid if they are unable to attend work for reasons outside of their control?
• Employees have a statutory right to a "reasonable" time off work to care for dependants to take "necessary" action. This should be taken into account, for example, when schools close suddenly and an employee finds they are without alternative child care arrangements.
• Where an employee is unable to work from home, could they make up any lost time and be paid for it accordingly?

We recommend employers implement a policy dealing with employee absenteeism during adverse weather conditions.

In the meantime, employers should consider contingency plans such as ensuring employees have access to their work email at home so they may work from home and ensure they keep employees informed of their pay situation should they be unable to attend work as a result of the adverse weather.

 

7. Extra bank holiday...For 2012

To celebrate the Queen's Diamond Jubilee next year, the Government have announced their plans to create the Diamond Jubilee weekend. By moving the late May Bank holiday to Monday 4 June 2012 and adding an extra bank holiday on 5 June 2012 there will be a long weekend in which to celebrate the Queen's Diamond Jubilee with style.

 

8. ACAS code of practice

ACAS have published a revised Code of Practice on Time Off for Trade Union Duties and Activities (the Code). The Code came into force on 1 January 2010 and whilst Employers are not legally obliged to follow the Code, employers should endeavour to follow the principles and guidance set out in the Code, not least because it is considered best practice and because following the Code and the Code itself are admissible as evidence in Tribunal proceedings.

 

A copy of the Code can be found at:

http://www.acas.org.uk/CHttpHandler.ashx?id=274

 

Laytons cannot accept any responsibility for any liabilities of any kind incurred in reliance on this Notepad. For specific advice on these issues, please contact your client partner or one of the team at the addresses set out below:

London
James Davies email james.davies@laytons.com or
Stephen Cates email stephen.cates@laytons.com or
Keith Corkan email keith.corkan@laytons.com

Guildford
Tim Randles email tim.randles@laytons.com

Manchester
Keith Corkan email keith.corkan@laytons.com
Michelle Gray michelle.gray@laytons.com

This Notepad is offered on the basis that it is a general guide only and not a substitute for legal advice. If you wish to copy this Notepad please do so, but please acknowledge its source.

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