People law in brief - November 2011

This year it seems that Remembrance Day was in the news more than ever.  The controversy over whether the England football team could wear Remembrance Day poppies in the match against Spain highlights the strength of feeling that Remembrance Day invokes. 

It seems that even Employment Tribunals are no exception to this, indeed in Briefcase News I look in detail at why a Tribunal ruled in favour of an employer who told an employee he could not wear a poppy to work.

Also this month, the law took a small step towards unravelling the extent of an employees’ entitlement to paid annual leave whilst they are on long term sickness absence and in what circumstances employees should be given this benefit.  This month’s Focus Point provides more detail on what obligations employers have in this regard.

The Government continues to look at ways to amend employment law to enable employers to dismiss employees more easily.  In Watch This Space I explain what the Government’s latest intentions appear to be. 

Stop press

On 23 November Vince Cable gave a press conference which officially confirmed the Government’s proposed changes to Employment Law. As the proposals are likely to have wide ranging significance for people managers we have included a Stop Press section in relation to the proposals below.

Focus point

In the last edition of People Law in Brief, you were reminded of the thorny issue of long term sickness absence and paid annual leave.  This issue once more takes centre stage as the Employment Appeal Tribunal EAT recently decided that an employee on sick leave must request holiday under Regulation 15 Working Time Regulations 1998 (“WTR”) in order to be paid for it.
 
The case of Fraser v Southwest London St George’s Mental Health Trust casts doubt on two previous decisions on this matter in the cases of List Design Group Ltd v Douglas and Others and Canada Life Ltd v Gray (both Employment Appeal Tribunal cases).

Mrs Fraser, a nurse, went off on long term sick leave in November 2005 following an accident at work.  In November 2007 the Trust attempted to facilitate Fraser’s return to work and resumed payment of her salary.  However, by March 2008, they ceased paying her as they could not find suitable employment for her and she was therefore dismissed in late 2008.  The Respondent paid her in lieu of untaken holiday entitlement accrued from the final leave year only and nothing in respect of the previous two years during which she had been absent and receiving no pay from the employer at all. 

The EAT held that despite accruing holiday pay from the date her sick leave began, she had not triggered the entitlement to be paid for this because she had not given her employer notice under Regulation 15 WTR that she wished to take this leave.

The Judge presiding (Underhill P) did note that it may sometimes appear artificial for an employee who is not at work to have to give notice that part of her absence should count as holiday, but acknowledged that this merely reflected the artificiality of an employee accruing entitlement to paid annual leave during the period of sickness absence, or to request that it be deferred until a later period. 

The EAT ruled that there was no obligation on employers to make employees who are on long term sick leave aware of their right to take paid holiday.

This decision is now the leading UK case on holiday pay and long term sickness absence.

Briefcase news
 
Employee’s request to wear a poppy was not capable of being philosophical belief under discrimination law

The Employment Tribunal has ruled that an employee’s belief in wearing a poppy for the period leading up to Remembrance Day was not a philosophical belief for the purpose of discrimination law. 

In the Employment Tribunal case of Lisk v Shield Guardian Co Ltd and Others, the Claimant (an ex serviceman) alleged that he had been discriminated against by his employer’s refusal to allow him to wear a poppy at work.  he issued proceedings for discrimination on the grounds of religion or belief.  He argued that he regarded the period leading up to Remembrance Day as a period of mourning with equal weight applied in his opinion to the Christian festival of Lent. 

He further argued that he considered it an obligation placed upon him to show respect for the sacrifice of others and that furthermore, the wearing of the poppy is widespread throughout the UK and does not conflict with anyone else’s rights. 

The Employment Judge presiding stated that this belief was too narrow to be considered a religious or political belief, as he could not find a philosophical belief which underpinned the choice to do so.  He added that whilst the decision was admirable, it did not have the characteristics of cogency, cohesion and importance required to make his employer’s refusal to allow him to wear the poppy actionable in law. 

Watch this space

Leaked pages of the Government's Beecroft report recently commissioned by the Prime Minister concerning Unfair Dismissal have indicated that the Government may wish to explore the option of changing the law on Unfair Dismissal so that unproductive workers would lose their right to claim Unfair Dismissal.  The Government claims that this would give businesses the right to remove unproductive workers and replace them with more capable individuals, hence boosting economic growth.  The report has not yet been made publicly available, and is not a final document. The Prime Minister has therefore not yet been able to comment on the recommendation of the report.

Additionally, Nick Clegg has pledged that workplace "protected conversations" will be permissible going forward.  This would mean that employers in the future will be able to challenge unproductive staff or speak with them about retirement without risking the threat of legal action. 

Employers who currently have frank discussions of this type with their employees face the real risk of having to defend their actions in Tribunal if the employee involved resigns and claims Constructive Dismissal as a result.  It is possible to minimise the likely legal fallout if employers take legal advice before addressing difficult issues with employees in this way. 

It is unclear how such “protected conversations” will be defined in law or how employees will be protected from unscrupulous employers using “protected conversations” to attempt to get rid of them for discriminatory reasons. 

Stop press

On 23 November 2011 the Business Secretary announced proposals that the Government have billed as the biggest shake up of Employment Law for decades. The Government have officially confirmed their intension to legislate to bring in the following changes:

• Unfair dismissal qualifying period to increase to two years
• All claims to be lodged through ACAS in order to attempt at mediation before they can be lodged with the Tribunal
• Employment Judges to sit alone in unfair dismissal cases
• Maternity and Paternity rights to be ‘modernised’ with greater emphasis on the involvement of Fathers
• Complaints about breaches of employment contracts to be taken out of whistleblowing law
• Financial penalties on employers who breach employment rights to be paid directly to the Treasury
• CRB checks to be portable so that there is no need for a fresh check every time an employee moves job
• The introduction of an issue fee in order to bring a claim in the Tribunal

Further consultation was announced in relation to the following:

• Protected conversations (see above)
• A reduction in the minimum consultation period needed to make mass redundancies
• The introduction of ‘no fault’ dismissals in organisations which employ less than 10 people. The idea is that the employer is able to dismiss employees outside current legislation as long as compensation is paid

There will also be a fundamental review of the Tribunal rules of procedure lead by the President of the Employment Appeal Tribunal.

The proposed changes will feature in the T&E Advance annual Employment Law update seminar on 8 December.  It would be great to get your feedback about these proposals so that your thoughts can be included and your questions answered as part of the seminar.

If you would like to get in touch please do so by emailing one of the Employment team using the links on the left hand side of the page.

And finally

A recently published study by the Institute of Public Policy Research (“IPPR”) has revealed that more women are leaving work to care for their children following government cuts to childcare support.  Until April 2011, working tax credits would cover up to 80% of the cost of childcare up to a maximum of £300 per week.  However, in April this was reduced to 70% in an attempt to cut welfare costs.  It is anticipated that with the average cost of childcare being £97 per week, this change will significantly affect 550,000 low to middle income families with anticipated losses of up to £1,300 per year per family. 

In further bad news for the economy, the number of unemployed women has risen by around 42,000 in the last 12 months, leaving critics asking why the government appears to be reforming the welfare system not to encourage people back to work, but to force women out of work.  For women who find that work no longer pays, this could have a significant impact on their own career prospects and on the economy as a whole.