HM Revenue & Customs has a generous sick leave scheme. Nevertheless employees on long-term sick leave claimed they were entitled to four week's paid holiday for each year of their sickness absence, or pro rata for less than a year's absence. They said that followed from the wording of the Working Time Regulations 1998.
The Court of Appeal disagreed and they appealed to the House of Lords. The House of Lords was not so sure. It referred the the question to the European Court as ultimately the answer turns on proper interpretation of the EU Working Time Directive (see HMRC v Stringer, Ainsworth & ors, HL 2006). The ECJ Advocate General has now given a preliminary opinion. It is that:
- workers are entitled to accrue paid holiday leave while absent on indefinite sick leave;
- (rather obviously) they can take the leave only after they have returned to work;
- they are entitled to pay in lieu if dismissed without having taken the accrued leave but not otherwise.
To many, especially employers, the Advocate General's view will seem strange.
As a matter of law it can be strongly argued that the Advocate General's opinion misses the point. The Working Time Directive is a health and safety measure to ensure that workers get proper rest breaks and leave. However the opinion is more about money than holidays. This is not what the Directive is about, as has been confirmed by the ECJ itself (in Federatie Nederlandse Vakbeweging v Staat der Nederlanden ECJ 2006) and in the UK by the EAT (in List Design Group Ltd v Douglas and ors 2002).
Whether the ECJ will follow its usual, but not guaranteed, practice of following the Advocate General's view remains to be seen.
The government introduced regulations in 2004 to encourage employers and employees to settle disagreements out of court. Rather than using a "carrot and stick" approach the regulations provided no carrot, merely a bundle of sticks. Employers and employees are penalised if before making, or replying to, an application to an employment tribunal they have not tried to settle their difference by following specified procedures
Unsurprisingly, the law of unintended consequences came into play. A new legal sub-culture rapidly grew up with employees, employers and their lawyers bringing cases simply to decide whether the new regulations applied and if so what was their effect. This was not what the government had intended and the Employment Bill currently before Parliament includes provisions to revoke the 2004 regulations. They will be replaced by non-prescriptive measures to encourage out of court settlement of employment disputes. Employment tribunals will be given discretionary powers to impose penalties on employers and/or employees who have not made a reasonable attempt to settle out of court, probably taking into account a beefed up ACAS Code of Practice.
Employees, employers and their advisers as well as judges will no doubt breathe a sigh of relief when the ill-fated Employment Act 2002 (Dispute Resolution) Regulations 2004 are eventually consigned to the dustbin. However that is unlikely before next year.
The regulations which outlaw age discrimination in the employment field contain an exception in relation to retirement. An employee can lawfully be required to retire at age 65 or over (Employment Equality (Age) Regulations 2006 reg 30 combined with Employment Rights Act 1996 s.98ZG).
The regulations were made to implement EC requirements (Council Directive 2000/78). The British "retirement exception" is allowed only if it can be justified as a proportionate means of achieving a legitimate aim. The British government naturally maintains that the retirement exception is justified but others argue that it is not and a case on the point is currently awaiting a ruling from the European Court of Justice. As the Court has already ruled that the Spanish government was justified in including a similar "retirement exception" in equivalent Spanish rules it must be likely that the British government will win. But nothing is certain - conditions in Spain are not the same as in Britain and what is justifiable there could be held to be unjustifiable here. It is unlikely that the ECJ will come to a decision before the end of 2008.
In the UK many employees who have been required to retire at age 65 have brought claims to the effect that their enforced retirement amounts to unfair dismissal. The President of the Employment Tribunals recently directed that all such claims, assuming they have been properly presented, must be put on hold pending the decision of the ECJ.
It is important to note that the British "retirement exception" applies only to employees. It does not apply to partners or other non-employees. The starting point for partners and other non-employees is therefore that requiring them to retire at a specified age (not necessarily 65) is unlawful and unenforceable. However it will be valid and enforceable if it can be justified - again as a proportionate means of achieving a legitimate aim.
There have been a few cases in which law firms have been able to show that age discrimination against former partners was justified but on the other hand an employment tribunal ruled in January that the Ministry of Justice was acting unlawfully in requiring a recorder (judge) to retire at age 65. That some cases have gone one way and some the other shows that each must be decided on its own merits and facts - matters such as the size of the partnership, the need to make way for younger partners and the wording of the partnership agreement are factors likely to be taken into account. It is obvious that the skills of a persuasive advocate are likely to be valuable in presenting or contesting a claim.
The annual increases in the maximum compensation which employment tribunals can award in many cases came into effect on 1st February. It is important to remember that there is no statutory maximum in age, sex, race and other discrimination cases.
The two most generally important increases are (i) to the amount of a week's pay which can be taken into account in calculating statutory redundancy pay and/or basic award on unfair dismissal - the increase is from £310 to £330; and (ii) to the limit on the amount of compensatory award a tribunal can order to be made on unfair dismissal - the increase is from £60,600 to £63,000.
The new limits apply where the "appropriate date" (as defined) falls on or after 1st February 2008. In general, the "appropriate date" is the date on which the event took place which gave rise to the claim - such as dismissal in an unfair dismissal case. If the appropriate date is before 1st February 2008, then even if the award is made after that date the previous limits apply.
The annual order increasing social security benefits in April 2008 (the Social Security Benefits Up-rating Order 2008) has now been issued in draft.
It confirms plans announced in December 2007 (for detail see Hansard cols 102WS to 118WS, 6th December 2007). These include proposals to increase the standard rate of Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay by 3.9% to £117.18 (currently £112.75). Statutory Sick Pay will increase to £75.40 (currently £72.55)
Note that to qualify for any of these the claimant must have had average weekly earnings of at least the National Insurance Lower Earnings limit for at least 8 weeks. This is to be set at £90 with effect from 6th April 2008 (by the Social Security (Contributions) (Amendment) Regulations 2008).
As from 6th April 2006, the upper limit for Class 4 NI contributions for those who are self-employed increases to £40,040 (currently £34,480)
The ECJ has ruled that it is unlawful for a trade union to take industrial action to force an employer to increase remuneration of immigrant workers from another member state to the same level as that paid to members of the union, assuming that the amount involved is more than the national minimum wage.
A Latvian company posted Latvian electricians to do work at a school in Vaxholm in Sweden, paying them the Swedish national minimum wage. Swedish trade unions set up a blockade of the school in an attempt to force the Latvian company to sign a collective agreement giving the electricians the same pay as negotiated by the Union for Swedish electricians - which was more than the minimum wage required under Swedish law. The ECJ ruled that such action is precluded by Articles 12 and 49 EC and by the Posted Workers Directive.
This is a relatively rare example of a case in which the ECJ came to a decision which was the opposite of that recommended by their Advocate-General (all ECJ cases are preceded by an "opinion" from an Advocate-General of the Court).
As a quite separate and purely British matter it is worth noting that the government has set the maximum penalty for illegal employment of a person who is subject to immigration control at £10,000 (the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2008, effective from 29th February 2008). This is much more than the originally proposed limit of £2,000 and reflects growing official concern over employment of illegal immigrants, especially following newspaper revelations in late 2007 that half a dozen employees of the Metropolitan Police and a man employed to guard the Prime Minister's car were illegal immigrants (see the Sunday Mirror of 11th November 2007).
This is a hot potato for both employers and staff in many companies. Under British law an employee with a disabled child under 18 has the right to ensure that a request for flexible working arrangements to enable the employee to care for the child is taken seriously by their employer. However that is as far as it goes. The employer cannot be required to agree the request, only to consider it seriously, and even that right is restricted to employees of at least six months standing.
A legal secretary working for Bermondsey solicitors Attridge Law was refused permission to take time off work to look after her disabled son, born in 2002. Knowing that the flexible working rules noted above are separate from the law which forbids Disability Discrimination, the lady concerned, a Ms Coleman, took her employer to an employment tribunal claiming that their refusal was unlawful disability discrimination. However it is quite clear from its wording that the Disability Discrimination Act 1995 protects only those who are themselves suffering from a disability, not their carers. Thus no one had ever won a claim of that sort. Ms Coleman, supported by the (then) Disability Rights Commission and a high powered legal team, persuaded an employment tribunal to refer the matter to the European Court of Justice.
Ms Coleman overcame an initial hurdle. Her employers argued that employment tribunals do not have power to refer questions to the ECJ. This argument was shot down by the British Employment Appeal Tribunal and the matter is proceeding in the ECJ.
There is still no final ruling from the ECJ but on 31st January an ECJ Advocate-General issued his opinion. This recommends that the full Court should decide in favour of Ms Coleman and that it should rule that the EC equal treatment in employment Directive 2000/78/EC "protects people who, although not themselves disabled, suffer direct discrimination and/or harassment in the field of employment and occupation because they are associated with a disabled person".
The Advocate-General went even further than outlined above. He suggested that this idea of "associative discrimination" should apply to other forms of discrimination where rules do not already provide that protection, specifically referring to discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
If the ECJ follows this opinion, which is not certain but statistically likely, it will mean that several parts of British law are incompatible with the EC Directive and will have to be changed. It should, however, be noted that in general discrimination is lawful if it can be shown to be justified as "a proportionate means to achieve a legitimate aim" and that anti-discrimination law is, by definition, aimed at ensuring equality of treatment rather than at outlawing bad behaviour as such. As the Advocate-General put it in the case referred to here ".... if Ms Coleman can prove that she was treated less favourably [than other staff] because of her son’s disability she should be able to rely on the Directive".
If enacted, this Private Member's Bill introduced in the House of Commons on 29th January 2008 will set up a statutory right for newly disabled employees and those whose existing impairments change to have an "employment retention assessment" prepared to determine possible entitlement to a period of rehabilitation leave.
According to its supporters, the idea underlying the Bill is that it is illogical to try to get disabled people get off benefits "while allowing those who develop a disability to get laid off with a pension or to be forced into claiming incapacity benefit". If enacted the Bill will ensure "that people who develop a disability during their working life, or whose existing disability deteriorates, are supported to remain in employment, where that is practicable".
This is the third time that attempts have been made to get the Bill passed. The previous two attempts failed, perhaps in part because already under existing law (the Disability Discrimination Act 1995 ) employers are required to make reasonable adjustments to meet the needs of disabled employees to ensure equality of treatment with that of a non-disabled employee. The Bill, if enacted, will take this further by introducing new sections into the Employment Rights Act 1996 requiring that an assessment be made to determine whether a disabled person can be supported in the workplace or in more serious cases allowed a period of leave.
TV and the newspapers have had a lot to talk about on this subject recently. We thought our readers might be interested in the legal background, whether or not they have any direct personal interest in what is going on.
The Criminal Justice and Public Order Act 1994 s.127 made it unlawful to induce Prison Officers to go on strike. In effect this worked as a ban on striking since as soon as two prison officers even considered with each other that they might strike it would be almost impossible to say that they had not "induced" each other to do so. A similar ban still exists for police officers.
In 2005 a voluntary agreement was reached with the Prison Officers' Association (POA). This "joint industrial relations procedural agreement" (JIRPA), provided mechanisms for resolving disputes between the POA and the Prison Service, including binding arbitration. In return, the legal "ban on striking" in sec 127 was repealed (by the Regulatory Reform (Prison Officers) (Industrial Action) Order 2005, SI 2005/908).
However, the government always reserved its position should things go wrong - which they soon did. In May 2007 the POA gave 12 months' notice that it was terminating JIRPA. Then in August 2007, even before that notice had expired, came the well-publicised prison officers' strike, which was ended when the government obtained an injunction (see for example BBC News 29 August 2007).
That wasn't what the government wanted, intended or expected. So it decided that if the Prison Officers were going to terminate JIRPA it would re-introduce the strike ban. This is being done by way of an amendment to the current 2008 Criminal Justice and Immigration Bill. The government hopes that this will be law before the Prison Officers' notice to terminate JIRPA expires in May 2008. Relevant trade unions have reacted angrily (see for example The Times 8th January 2008). Maybe a little smugly the Scottish Parliament has indicated that it does not intend to take similar steps.
As ever, you can find on our website summaries of all employment law cases reported in the most recent editions of the IRLR and ICR Law Reports (the two leading series of law reports covering employment law cases). There are also summaries of all recent employment law Acts of Parliament and of more than 2,000 other employment law cases, including all those reported in IRLR and ICR since the end of 1999.