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Entitlement to holiday pay
for employees on sick leave - ECJ to
decide
It is understood
that the case of HM Revenue and Customs v
Stringer and ors (formerly Ainsworth and ors v
Inland Revenue) has now been referred by the
House of Lords to the ECJ.
This case
attracted much attention last year. In a decision
welcomed by many employers, the Court of Appeal
held that workers who had been on long-term sick
leave for the entire holiday year were not
entitled to 4 weeks' paid holiday under the
Working Time Regulations 1998. The House of Lords'
referral to the ECJ means that we will have to
wait some time for further
clarification.
Time up
for the opt-out?
Under
the Working Time Regulations 1998, workers cannot
work more than 48 hours per week unless they agree
to do so and there is a written agreement
terminable by the worker on between 7 days and 3
months' notice. This is known as the
'opt-out'.
The ability to opt-out has
attracted much criticism but has been fiercely
defended by the UK. The Finnish presidency of the
EU has organised a meeting of employment ministers
on 7 November in an attempt to broker a deal on
the Regulations. It hopes to reach a compromise
which would allow the opt-out to be retained, but
only under rigid conditions.
Effect of coping strategies on
disability
The EAT has
recently overturned a tribunal's decision that a
police officer with a visual impairment was
disabled.
In Commissioner of Police of the
Metropolis v Virdi, the tribunal had failed to
take into account the fact that the police
officer's 'coping strategies' (for example, his
need to rest after reading or using a computer)
could prevent or mitigate the adverse effects of
his impairment, as outlined in statutory guidance
on the definition of disability. The tribunal had
therefore misdirected itself in relation to the
relevant case authorities and its decision that
the police officer was disabled could not stand.
The EAT remitted the case to the same tribunal for
reconsideration of the coping strategies and
statutory guidance.
Whistleblowing - time limits relating to a
'series of similar acts'
The Court of Appeal has addressed an
interesting point in relation to the time limit in
which a whistleblowing claim can be brought,
highlighting the need for tribunals to hear
evidence in such cases.
In Arthur v
London Eastern Railway Ltd (t/a One Stansted
Express), the Court of Appeal held that the
employment tribunal was mistaken when it ruled
that a number of alleged acts and failures by an
employer did not form part of a 'series of similar
acts of detriment or failures' for the purposes of
bringing a whistleblowing claim.
The
statutory provisions under the Employment Rights
Act 1996 which relate to acts forming part of a
series of similar acts are aimed at allowing
employees to complain about acts which fall
outside the usual 3 month time limit. There must
be an act or failure within the 3 month period,
but the complaint is not necessarily confined to
that act or failure. The last act or failure
within the 3 month period can be treated as part
of a series of similar acts or failures occurring
outside this period and, if it is, the complaint
about the whole series of similar acts or failures
can be treated as being brought within
time.
The tribunal's
mistake in this case had been to decide the time
limit issue solely on the basis of legal argument,
without hearing any evidence or making any
findings of fact. The Court commented that it was
not a particularly enlightening exercise to ask
what made acts part of a series or what made one
act similar to another, and it was preferable to
find the facts before attempting to apply the
law.
The Court did comment that evidence
would be needed to determine what link, if any,
there was between those acts which fell within the
3 month period and those which fell outside it. It
suggested that it would be necessary to look at
all the circumstances surrounding the acts,
whether they were all committed by fellow
employees and, if not, what connection, if any,
was there between the alleged
perpetrators.
New ACAS
guidance
ACAS has
produced the following guides to assist employers
in the workplace:
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- Sexual
orientation, and religion and belief, audit tools to provide an
indication of whether your organisation is
avoiding
discrimination
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Bullying on the
increase
The Chartered
Institute of Personnel and Development (CIPD) has
published findings from its recent survey of 2,000
employees, which indicate that one fifth of all UK
employees have experienced some form of bullying
or harassment over the last two years, with
employees in the public sector workers more likely
to suffer than those in the private
sector.
CIPD has published its findings
ahead of the national 'ban bullying at work' day
on 7 November, in an effort to encourage employers
to address bullying and harassment issues in the
workplace.
Click here to access CIPD's
press release.
UK workplaces facing
rising stress levels
According to research published by the TUC
this week, stress is still the biggest problem
facing UK workplaces. Based on a survey of safety
representatives, the TUC's research shows that
stress is the number one hazard at work, due to
excessive workloads, job cuts and long working
hours.
Click here to read the TUC's
press release.
Women losing out by
£330,000
The Equal
Opportunities Commission (EOC) estimates that the
average working woman will lose out on around
£330,000 over the course of her working life, with
research showing that the pay gap remains at
17.2%.
Click here for the EOC's
press release.
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