HMO QUARTERLY EMPLOYMENT BULLETIN
October 2009

SICKNESS DURING HOLIDAY
In the Spanish case of Pereda the European Court of Justice has held that periods of illness whilst on holiday do not count towards the minimum period of paid annual leave under the Working Time Directive.

In the case of Pereda, Mr Pereda suffered an accident at work two weeks prior to a  four week holiday. The injury left him unable to work for six weeks. His request  for further annual leave was refused. The European Court of Justice ruled that his period of sick leave should not have counted as part of his annual leave.

In essence the employee will have the option of reallocating his/her annual leave if sick whilst on holiday.   Whilst the rationale that annual leave has a purpose of allowing an employee to rest and recuperate (which is undermined if the employee is subsequently taken ill), there is the concern that this finding may open the door for rogue employees to reclassify their annual leave as sick leave.  Employers will need to carefully review their Sick Leave policies and the issue of self certification.

MOTIVATION FOR DIRECT DISCRIMINATION
In a recent Employment Appeals Tribunal case Amnesty International were found to have directly discriminated against an employee on the grounds of race notwithstanding potentially justifiable reasons for the treatment.

It upheld an employment tribunal decision that Amnesty’s decision not to promote an employee to the position of Sudan researcher because of her northern Sudanese ethnic origin was an act of direct discrimination. It was not relevant   that Amnesty thought that appointing someone of her ethic origin to the role would compromise Amnesty’s perceived impartiality in relation to the conflict in Sudan and would expose the Claimant and those with her to an increased safety risk when visiting Sudan.

However the EAT disagreed with the Employment Tribunal's decision, that Amnesty's act of direct discrimination amounted to a breach of the implied contractual term of mutual trust and confidence (giving rise to a constructive unfair dismissal). Amnesty's decision had been reached after a careful process, and for genuine reason/concerns, it had not acted in such a way calculated to destroy its relationship with the Claimant.

EMPLOYMENT OF CHILDREN
The Department for Children, Schools and Families has published guidance on the employment of children.  The guidance includes information on age limits, restrictions on the hours and the types of work children can be employed to do, health and safety requirements, and the implications for employers and parents of employing children.  It also deals with issues such as babysitting and work experience.

The guidance deals with legislation specific to the employment of children and accordingly it should be noted that general employment obligations (which apply to children and adults) still need to be separately considered by employers.

RISE IN REDUNDANCY ADVICE
ACAS’s annual report for 2008/09 has reflected the impact of the recession. It has indicated a huge increase in demand for redundancy advice.  This has increased by almost three quarters along with a 22% rise in unfair dismissal conciliation cases.


LEGAL REPRESENTATION IN DISCIPLINARY PROCEEDINGS
A recent Court of Appeal case of Kulkarni v. Milton Keynes Hospital NHS Foundation Trust dealt with the issue of entitlement to legal representation at internal disciplinary hearings for medical professionals
 
It held that NHS doctors and dentists are entitled to legal representation at internal disciplinary hearings to determine serious disciplinary charges (ie misconduct or capability)

It was also advised by the Court that in relation to all employees of public bodies, disciplinary proceedings that may result in dismissal and prevent the employee from practising his/her profession again, must comply with Article 6 of the European Convention of Human Rights (the right to a fair trial).

TWITTER YE NOT
Recent use of the website Twitter by professional sportsmen Philip Hughes (Australian test cricketer who announced that he been dropped before it had been made public) and Darren Bent (Formerly Tottenham and now Sunderland footballer who criticised the Tottenham chairman over delays in his transfer) highlights the need for employers to review their IT policies.

Sites such as Facebook and Twitter provide employees an opportunity to make a number of published comments about their lives which can include work life and colleagues.  

Aside from distracting employees during working hours these sites create a number of potential difficulties and risks including defamatory comments about work colleagues or management, an extension of workplace bullying and the disclosure of confidential or sensitive information

Blanket bans on the use of such sites during working hours may go someway to limiting the difficulties but employers will need to consider the wording of IT and possibly disciplinary policies to enable them to deal with comments that are published in the employees own time to prevent damage to working relationships and the reputation of the business.

Increase in Statutory Redundancy Pay/Minimum wage
Just a quick reminder that statutory redundancy pay limit will rise from £350 per week to £380 per week on 1 October 2009.

Don’t forget that the National Minimum Wage will also increase as follows:
 
for workers aged 22 and above the rate will rise from £5.73 to £5.80;
for workers aged 18 to 21 the rate will rise from £4.77 to £4.83;
for workers aged 16 and 17 the rate will rise from £3.53 to £3.57.

From October 2010 the adult rate will apply to 21 year olds.


Disclaimer

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.