No
obligation to extend sick pay for disabled
employees
The Court of Appeal has confirmed that an
employer is not obliged to continue paying sick
pay to a disabled employee once sick pay
entitlement has been exhausted. Any failure to do
so was held to be neither a breach of the duty to
make reasonable adjustments nor unlawful
disability-related discrimination.
In
O'Hanlon v Commissioners for HM Revenue and
Customs, Mrs O'Hanlon was disabled under the
Disability Discrimination Act 1995 (DDA). Under
HMRC's sick pay rules, employees were entitled to
receive full pay for up to 6 months' sickness
absence in any period of 12 months, and half pay
for a further maximum period of 6 months. This was
subject to a maximum of 12 months' paid sickness
absence in any period of 4 years. Mrs O'Hanlon had
taken significantly long periods of absence and
had exhausted her sick pay entitlement. She
claimed that she was substantially disadvantaged
by the sick pay rules, and that HMRC had failed to
make any reasonable adjustments to counter that
disadvantage, to enable her to continue to receive
full pay during her absence. She argued that the
failure to make such a payment amounted to a
failure to make reasonable adjustments and
disability-related discrimination.
In the
Court of Appeal, Mrs O'Hanlon claimed, in relation
to her argument on reasonable adjustments, that
she ought to have been paid full pay when, after
the expiry of 6 months full pay under the
employer's sick pay policy, she was absent for
disability-related reasons. She also put forward
an alternative argument; that periods of absence
for a disability-related reason should not be
aggregated with periods of absence for non
disability-related sickness. Therefore, she argued
that in any four year period she should be
entitled to 6 months' full pay and 6 months' half
pay for disability-related absence and 6 months'
full pay and 6 months' half pay for non
disability-related absence.
The Court of
Appeal rejected both these arguments, endorsing
the findings of the Employment Appeal Tribunal
(EAT). To support her argument that a reduction
from full pay after 6 months was discriminatory,
Mrs O'Hanlon only relied on the additional
pressure placed on her by financial hardship which
fed into her depression. The Court agreed with the
EAT that employers should not be expected to
determine whether to maintain sick pay entitlement
at full pay by assessing the financial hardship
suffered by an employee or the stress resulting
from the lack of money. The non-aggregation
argument also failed for the same reasons, as
there were no special circumstances which would
require the employer in this case not to
aggregate. The financial hardship argument had
already been rejected.
In relation to
disability-related discrimination, the Court of
Appeal agreed that although Mrs O'Hanlon had been
treated less favourably for a reason related to
her disability, the treatment was justified.
Whilst this decision is a complex one, it
provides welcome confirmation that disabled
employees do not have an automatic right to
receive pay after sick pay entitlement has been
exhausted, by virtue of an employer's duty to make
reasonable adjustments under the DDA. However, it
is important to remember that although the case
confirms there is no automatic right, this does
not mean there is no right at all and the
circumstances of each case should always be
considered. It is also worth noting that HMRC ran
this as a suitable test case partly because they
were confident that they had followed all their
procedures, treated Mrs O'Hanlon reasonably and
not caused or contributed to the absence. The law
may be less straightforward where the employer is
at fault.
Definition of
"worker" for purposes of protected disclosures
The EAT has confirmed that when an
individual supplies his services to an employment
agency through his own company, and the agency, in
turn, provides the services of that company to a
client (or "end user"), that individual will be a
"worker" of the end user for the purposes of the
whistleblowing provisions in the Employment Rights
Act 1996 (ERA).
The
whistleblowing provisions in ERA were introduced
by the Public Interest Disclosure Act 1998. Under
ERA, a worker has the right not to be subjected to
any detriment on the ground that he has made a
protected disclosure (e.g. he has disclosed to his
employer that a criminal offence has occurred at
work).
In Croke v
Hydro Aluminium Worcester Ltd, an individual
claimed that he had suffered a detriment as a
result of his whistleblowing, and needed to show
that he was a worker before the tribunal could
hear the claim. Key to this case were the
whistleblowing provisions in ERA which provide an
extended definition of a "worker". This definition
provides that a worker includes an individual who
works for a person in circumstances in which:
Adopting a purposive approach to construing
statutory provisions in order to provide, rather
than deny, protection, the EAT held that the
individual had been introduced by the employment
agency to the end user, even though he was
subsequently supplied through his own company. The
EAT also confirmed that the individual (and not
just his own company) had been supplied to the end
user by the employment agency. The individual was
therefore a worker of the end user and the
tribunal did have jurisdiction to hear his
whistleblowing claim.
Age discrimination
hits the headlines
Age
discrimination claims look set to increase after a
recent case illustrated that such claims may in
fact be brought in relation to events which took
place prior to 1 October 2006, when the Employment
Equality (Age) Regulations 2006 came into force in
the UK.
A 67-year old NHS employee who was
sacked on 30 September 2006, a day before the
Regulations came into force, has attracted much
publicity after winning back her job. When
originally dismissed from her position, the
employee was told that she would receive the
contractual payment of 11 weeks' pay rather than
the 11 months' pay to which she would have been
entitled had she been dismissed a day later. She
subsequently launched a claim for unfair dismissal
and age discrimination. Following a preliminary
hearing, in what has been reported as a landmark
victory, the NHS Trust agreed to reinstate the
employee.
The Regulations themselves are
not retrospective and therefore employees can only
bring claims if the alleged age discrimination
takes place after 1 October 2006. However, at the
preliminary hearing, it has been reported that the
tribunal agreed that it was worth considering the
employee's argument that her age discrimination
claim should be accepted because the EC Directive
on Equal Treatment, on which the Regulations are
based, had already been introduced.
This
argument was based on an earlier German case,
Mangold v Helm, which reached the
European Court of Justice (ECJ). The ECJ
controversially stated in this case that member
states of the EU should not legislate incompatibly
with the age equality strand of the EC Directive
after the adoption of that Directive, and that
courts and tribunals hearing a dispute involving
the principle of non-discrimination in respect of
age must provide individuals with protection in
accordance with the EC Directive, even if the
Directive is not yet incorporated into national
law.
Whilst the NHS employee's claim did
not proceed to a full tribunal hearing, it is
undoubtedly significant that she was able to
persuade the tribunal that she had a potential age
discrimination claim despite being dismissed
before the Regulations came into force. Many
people thought that the decision in Mangold v
Helm might be reversed or watered down, as
the principle of providing protection before a
Directive is incorporated into national law seemed
to be unworkable. However, now that a tribunal has
entertained this possibility, it may well open the
door to other employees who want to challenge
potentially age discriminatory decisions taken by
employers prior to 1 October 2006, albeit that
such individuals would now face time obstacles if
they have not already launched litigation.
New DTI
guide to TUPE 2006
The DTI has published
a new guide to the Transfer
of Undertakings (Protection of Employment)
Regulations 2006.
Interestingly, the
guidance has been amended to clarify that changes
to terms and conditions agreed by the parties
which are "entirely positive" are not prevented by
the Regulations.
This amendment follows
the recent decision of Power v Regent Security
Services Ltd (reported in our earlier update
on 9
February), in which the EAT held that
transferring employees should not be deprived of
any rights which transfer with them and should not
be barred from holding a transferee to new terms
if they consider them to be more favourable.
New ACAS
guides
ACAS has published an
updated guide on smoking at work and a
Q&A on "breaking the habit",
to provide guidance for employers and employees
before 1 July 2007, when the ban on smoking in
enclosed public places and workplaces comes into
force. It has also published an updated guide on
redundancy payments.
Grant
backing part-time senior positions
The Government has
announced the creation of a new fund to encourage
the creation of part-time jobs in senior
management.
Ruth Kelly, Minister for Women,
announced that new grants, worth almost £500,000,
will be distributed to private and public sector
employers as part of a series of measures to raise
the earnings potential of women at work and reduce
the gender pay gap. Ms Kelly said the money will
help employers find ways to open up quality
part-time opportunities for women managers, and
give women confidence to choose a better work-life
balance.
Name
calling, threats and bullying dominate workplace
discrimination allegations
Since the Employment
Equality (Sexual Orientation) Regulations and the
Employment Equality (Religion or Belief)
Regulations came into force in 2003, allegations
of bullying and harassment have dominated the
claims brought under these
Regulations.
According to research commissioned
by the DTI and carried out by ACAS, discrimination
claims brought under the Employment Equality
(Sexual Orientation) Regulations have included
allegations of name calling, threats and physical
assaults. Similarly, claims brought under the
Employment Equality (Religion or Belief)
Regulations have involved instances of bullying or
harassment, and difficulties over working hours,
time off or leave to follow religious practices,
promotion or retirement and workplace dress
codes.
Between January 2004 and September
2006, 470 individuals brought tribunal claims
where the main allegation concerned discrimination
on grounds of sexual orientation and 461 brought
cases where discrimination on grounds of religion
or belief was the main claim. In some instances,
allegations regarding religion or belief
overlapped with perceived race discrimination,
with 66% of religion or belief tribunal claims
including allegations of race discrimination as a
secondary jurisdiction.
Rita Donaghy, the
Chair of ACAS, said "These 2003 Employment
Equality Regulations provide a further step
forward in outlawing discrimination in our
workplaces. This is the first time since the new
regulations came into force that sexual
orientation and religion or belief at work has
been subject to research. The findings shed new
light on these issues both from the employees' and
employers' perspective."
175
million working days lost in 2006
Absence increased in
2006 as workers took an average of seven days off
sick, losing 175 million working days and costing
the economy £13.4billion, according to research undertaken by
CBI and AXA.
The research reveals that
long-term absences of 20 days or more accounts for
43% of all working time lost, costing £5.8billion.
In the public sector, just over half of absence
(52%) is long-term, while in the private sector,
this was over a third (38%).
Short-term absences
were a key concern for employers, who believed
that around 12% are suspect and involve staff
"pulling a sickie". 70% of employers felt that
staff were inclined to create unauthorised long
weekends, by taking Mondays or Fridays off sick,
with 68% saying that there was a link between
sickies and holidays. The research concluded that
short-term absences led to 21 million days being
lost in 2006, at a cost to the economy of
£1.6billion.
Depression and anxiety - "silent epidemic"
in the workplace
According to a
recent online poll, two-thirds of the workers
surveyed admitted that that they have been made
ill by work, with 48% of these suffering from
depression and 43% suffering from anxiety or panic
attacks.
Other
findings of the study carried out by the Work Life
Balance Centre and the universities of Keele,
Coventry and Wolverhampton also revealed that 8 in
10 people have a problem juggling the competing
demands of work and home and 8 in 10 workers feel
that at times they cannot cope with the demands
placed upon them.
Julie Hurst, director of the Work Life
Balance Centre, said that depression and anxiety
have become a "silent epidemic" in the workplace
and suggested that all employers should "look
carefully at these issues and arrange access to
the appropriate forms of help, as it is in the
long term interests of the business to support
healthy, and ultimately productive,
employees"..