Claiming further holiday if sick during holiday leave – the European Court of Justice (ECJ) has held that a worker who is sick during his annual leave is entitled to take replacement annual leave at another time. In rescheduling the leave, the employer's interests can be taken into account but if for business reasons the replacement leave cannot be taken in that leave year the employer must allow it to be carried over to the following holiday year. For further information on this please click here (Pereda v Madrid Movilidad SA)
Motive and race discrimination – the
Employment Appeals Tribunal has held that if disadvantageous
treatment suffered by an employee is on the grounds of his or her
race then it is irrelevant that the motives behind this were
founded on good intentions. This case also confirmed that whilst an
act of discrimination would usually constitute a breach of mutual
trust and confidence and therefore support a finding of
constructive dismissal, this is not necessarily always the case. In
this case the employer, Amnesty International, had sought to avoid
posting an employee to a role where her racial origins were
perceived as causing significant risk to her and potentially to
others. The motive therefore was understandable but it was still
discrimination on the grounds of race. The good intention prevented
it being an act of constructive dismissal. (Amnesty
International v Ahmed)
Religion and belief discrimination - the
Employment Appeals Tribunal has upheld an Employment Tribunal's
decision that an individual's belief in man-made climate change
and the existence of a moral duty to live in a way that mitigates
or avoids it was capable of being a "philosophical
belief" for the purposes of the Employment Equality (Religion
or Belief) Regulations 2003. For further information on this
please click here (Grainger plc and others v
Nicholson)
Depriving an employee of early retirement pension was age
discriminatory – the Employment Appeals Tribunal
held that a Council's decision to dismiss Mr Wooster shortly
before his 50th birthday so that he did not become entitled to an
early retirement pension was age discriminatory. It is worth
noting, however, that the Council did not attempt to put forward an
argument that the discrimination was objectively justified which
might have resulted in a different outcome. This decision is
subject to an appeal. (London Borough of Tower Hamlets v
Wooster)
Justification for age discrimination –
the employer's decision to dismiss Mr Woodcock in time for his
dismissal to take effect shortly before his 50th birthday, and so
benefitting from enhanced retirement benefits, was held by an
Employment Tribunal to be justified. The tribunal noted that cost
cannot be the sole justification for discrimination but considered
that preventing an employee from becoming entitled to a windfall
because of his age could be a legitimate aim. This is perhaps a
surprising outcome. However, it is a non-binding tribunal decision
and is subject to an appeal. For further information on this and
the above Wooster case
please click here. (Woodcock v Cumbria Primary Care
Trust)
Whether ongoing pension loss should be awarded as
compensation for unfair dismissal - the Court of Appeal
held that the Employment Tribunal and the Employment Appeals
Tribunal were wrong to award Ms Roberts compensation for ongoing
pension loss where she had mitigated her loss of earnings by
securing employment in a new job on more favourable terms. The
tribunal had erred in considering her pension rights, which were
less beneficial in her new role, separately from her other
remuneration, which was better in the new role. The correct
approach should have been to consider the remuneration package as a
whole meaning that she had no entitlement to ongoing pension loss.
(Aegon UK Corp services Ltd v Roberts)
Retirement and age discrimination – as
has been widely reported, in the so called Heyday case the High
Court has held that the UK's default retirement age of 65 is
lawful and that employers can objectively justify both direct and
indirect age discrimination. It should be noted that the default
age is to be reviewed by the Government in 2010 and that this is
likely to lead to a change. (R (on the application of
Age UK) v Secretary of State for Business,
Innovation and Skills)
TUPE and material detriment – the
Employment Appeals Tribunal has held that regulation 4(9) of TUPE
which deems an employee to have been dismissed if he suffers 'a
substantial change in working conditions to [his] material
detriment' must, among other things, be interpreted
subjectively from the employee's point of view. This makes it
easier for an employee to establish a dismissal under Regulation
4(9) and will create much greater risk of dismissals being deemed
to have occurred in TUPE situations where there is any change to
the working conditions of the employees transferred. (Tapere v
South London and Mauldsley NHS Trust)
Constructive dismissal - the Court of Appeal has
held that where an employee is constructively dismissed, the
employer need not compensate him in full for the notice period if
the employee has obtained alternative work elsewhere. The Court
took a different approach to that in cases of actual dismissal,
because in those cases it is considered good industrial relations
practice to give full compensation during what would have been the
notice period, had proper notice been given. (Stuart Peters Ltd
v Bell)
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
