HMO QUARTERLY EMPLOYMENT BULLETIN
October 2009

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

In the case of Pereda, Mr Pereda suffered an accident at work two weeksprior to a  four week holiday. The injury left him unable to work forsix weeks. His request  for further annual leave was refused. TheEuropean Court of Justice ruled that his period of sick leave shouldnot have counted as part of his annual leave.

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

MOTIVATION FOR DIRECT DISCRIMINATION
In a recent Employment Appeals Tribunal case Amnesty International werefound to have directly discriminated against an employee on the groundsof race notwithstanding potentially justifiable reasons for thetreatment.

It upheld an employment tribunal decision that Amnesty’s decision notto promote an employee to the position of Sudan researcher because ofher northern Sudanese ethnic origin was an act of directdiscrimination. It was not relevant   that Amnesty thought thatappointing someone of her ethic origin to the role would compromiseAmnesty’s perceived impartiality in relation to the conflict in Sudanand would expose the Claimant and those with her to an increased safetyrisk when visiting Sudan.

However the EAT disagreed with the Employment Tribunal's decision, thatAmnesty's act of direct discrimination amounted to a breach of theimplied contractual term of mutual trust and confidence (giving rise toa constructive unfair dismissal). Amnesty's decision had been reachedafter a careful process, and for genuine reason/concerns, it had notacted in such a way calculated to destroy its relationship with theClaimant.

EMPLOYMENT OF CHILDREN
The Department for Children, Schools and Families has publishedguidance on the employment of children.  The guidance includesinformation on age limits, restrictions on the hours and the types ofwork 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 ofchildren and accordingly it should be noted that general employmentobligations (which apply to children and adults) still need to beseparately considered by employers.

RISE IN REDUNDANCY ADVICE
ACAS’s annual report for 2008/09 has reflected the impact of therecession. It has indicated a huge increase in demand for redundancyadvice.  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 NHSFoundation Trust dealt with the issue of entitlement to legalrepresentation at internal disciplinary hearings for medicalprofessionals
 
It held that NHS doctors and dentists are entitled to legalrepresentation at internal disciplinary hearings to determine seriousdisciplinary charges (ie misconduct or capability)

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

TWITTER YE NOT
Recent use of the website Twitter by professional sportsmen PhilipHughes (Australian test cricketer who announced that he been droppedbefore it had been made public) and Darren Bent (Formerly Tottenham andnow Sunderland footballer who criticised the Tottenham chairman overdelays in his transfer) highlights the need for employers to reviewtheir IT policies.

Sites such as Facebook and Twitter provide employees an opportunity tomake a number of published comments about their lives which can includework life and colleagues.  

Aside from distracting employees during working hours these sitescreate a number of potential difficulties and risks includingdefamatory comments about work colleagues or management, an extensionof workplace bullying and the disclosure of confidential or sensitiveinformation

Blanket bans on the use of such sites during working hours may gosomeway to limiting the difficulties but employers will need toconsider the wording of IT and possibly disciplinary policies to enablethem to deal with comments that are published in the employees own timeto prevent damage to working relationships and the reputation of thebusiness.

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 awarenessonly.  They do not purport to constitute legal or professional advice. The law may have changed since this article was published.  Readersshould not act on the basis of the information included and should takeappropriate professional advice upon their own particularcircumstances.