The
Court of Appeal, however, has confirmed that a
tribunal should make its judgment as to whether
unlawful discrimination has been established on
the basis of evidence of the circumstances
prevailing at the time the alleged discriminatory
decision is taken by the employer. The legislation
"requires a prophecy to be made" and therefore
does not permit subsequent events to be taken into
account.
Holiday entitlement during
sick leave - Advocate General's Opinion
Workers
who are absent on sick leave should still accrue
entitlement to statutory annual leave, according
to the Advocate General in Stringer and ors v
HM Revenue and Customs.
This
case originally reached the House of Lords in 2006,
when the issue of accruing statutory paid holiday
during sick leave was subsequently referred to the
European Court of Justice (ECJ). Clarity in this
area has therefore been needed for some time.
The
Advocate General's Opinion, based on the questions
referred by the House of Lords to the ECJ in 2006,
states that:
-
the
Working Time Directive must be construed as
meaning that a worker on sick leave is entitled
to accrue entitlement to paid annual leave
during that sick leave
-
such
a worker, however, cannot take this annual leave
while they are on sick leave
- on
termination of employment, a worker is entitled
to payment in lieu of leave which has accrued
but has not been taken due to illness. This is
also the case where the worker was on sick leave
for all or part of the leave year in
question.
Whilst
the Advocate General's Opinion is helpful, the
next stage is for the ECJ to give a ruling on this
case. The ECJ tends to follow the Advocate
General's Opinion but this is not guaranteed. It
is likely to be at least a further six months
before we have a definitive ruling on this issue
and can fully assess the practical impact for
employers.
Compulsory retirement and
age discrimination
It
is only a few weeks into the New Year but it is
already clear that age discrimination will be a
particular area of interest over the coming
months.
As
with the case of Bloxham
v Freshfields, heavily reported last
year, the most recent case to address the newest
strand of discrimination involved a firm of
solicitors. In Seldon v Clarkson Wright and
Jakes, an Employment Tribunal has confirmed
that the compulsory retirement of a partner in the
firm constituted direct age discrimination under
the Employment Equality (Age) Regulations 2006,
but it was lawful as it was objectively justified
as a proportionate means of achieving a legitimate
aim.
Offering
some useful guidance on the interpretation of
objective justification, the Tribunal concluded
that the compulsory retirement age did achieve
legitimate aims, which included the following:
-
ensuring
that associates were given the opportunity of
partnership after a reasonable period, thereby
discouraging them from leaving
-
facilitating
the planning of the partnership and workforce
across individual departments by having
realistic long term expectations as to future
vacancies
-
limiting
the need to expel partners by way of performance
management, and contributing to the congenial
and supportive culture in the firm
The
tribunal also considered the effect or impact of
compulsory retirement, and carried out a balancing
exercise between the needs of the partnership and
the impact of compulsory retirement on the partner
concerned. On the basis that the compulsory
retirement rule applied to all partners
irrespective of personal circumstances, it was
held to be a proportionate means of achieving
legitimate aims and was therefore objectively
justified.
Disparity of treatment and
dismissal
The
EAT has confirmed in a recent unfair dismissal
case that there are limited circumstances in which
the disparity of treatment between employees
involved in similar incidents will be
relevant.
In
Epstein v Royal Borough of Windsor and
Maidenhead, two lifeguards at a swimming pool
were on duty when an incident occurred in the
pool. Following a disciplinary procedure, one
lifeguard was dismissed but the other was not
disciplined at all.
The
EAT confirmed that the difference in treatment was
not an issue in this case. The tribunal was
satisfied that the employer had carried out an
adequate investigation and had reached a
conclusion which was not capable of being
characterised as unreasonable. The lifeguard who
was not dismissed had not been in a position to
observe the relevant incident and could not have
been expected to take any action. The tribunal had
therefore been entitled to conclude that the
employer had acted within the reasonable band of
responses and the issue of disparity of treatment
between employees was not relevant.
Data security - what every
organisation needs to know
There
is no doubt that data security has been a hot
topic recently, most notably following the loss of
personal records by HM Revenue and Customs last
year. However, the need to safeguard data has
always been vital in the workplace. Whether
through pure accident, negligence, recklessness or
deliberate action, employees are often at the
heart of security breaches and it is important for
organisations to implement a comprehensive data
security strategy.
Click
here
to read more in a briefing paper on the key legal
issues within the field of data security, which
follows the recent session 1 of our "Data Security
Breakfast Briefing" series. This briefing paper
addresses not only the relevant employment law
issues but also the wider implications for other
areas of law, including contract law,
technology law and litigation.
Impact of sick employees
on the workplace
Despite
news of the norovirus bug still lingering in the
headlines, only one in four organisations report
that they have a plan in place if large numbers of
employees become ill.
According
to the findings of the CCH Unscheduled Absence
Survey, coping with sick employees in the
workplace still presents a variety of problems.
For example, the survey reports that when sick
employees show up for work ("presenteeism"), there
is a significant and costly impact on an
organisation, not least in terms of diminished
productivity, quality and attention to safety.
Overall, 38 per cent of employers said
presenteeism was a problem in their organisation.
The survey also found that the most common reason
that employees come to work sick is having too
much work and impending deadlines. 56 per cent say
there is no-one available to cover their workload
and 49 per cent report fear of discipline as the
reason sick workers come into work.
Fear associated with
homeworking
Whilst
remote working might save organisations money,
recent research is reported as showing that
employees remain worried about what they may miss
out on by being out of the workplace.
According
to the research, commissioned by Durler
Consulting, and carried out among 40 organisations
with between 50 and 500 staff, there is a mixed
response in attitudes to remote working. Fear of
missed promotion opportunities, envy of other
employees, health and safety concerns and lack of
social interaction were listed as key concerns.
However cost savings, improved technology and
shorter working days were all considered to be
benefits to the businesses that are embracing the
concept of homeworking.
Death of the traditional
annual pay rise
Almost
half of organisations (46 per cent) no longer
award employees an across the board annual pay
rise or cost of living adjustment, according to
this year's Annual Reward Management survey from
the Chartered Institute of Personnel and
Development (CIPD).
Manufacturing,
production and private sector service firms are
the least likely to provide such a pay rise. It
seems that the current trend is to allocate pay
budgets to departmental heads to distribute among
staff based on individual and or collective
contribution, and movements in market rates and
inflation, rather than as an across the board
rise.
The
survey also states that 70 per cent of
organisations use cash based bonuses or incentive
plans. Broken down by sector, 86 per cent of
organisations in the manufacturing and production
sector, 89 per cent in private sector services and
30 per cent of voluntary and public sector
services provide cash based bonuses. However, only
40% of employers plan to amend their current bonus
scheme or introduce new
schemes.