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RECENT CASES |
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highlights Time off Holiday entitlement during long-term sick leave See EM ¶4007, ¶4102 The ECJ has ruled on this case dealing with the right of workers who have been on sick leave for the whole of a leave year to take statutory annual leave. According to the ECJ, in cases of long-term sick leave: » annual leave accrues in the normal way and if it is not taken the worker will be entitled to pay in lieu of annual leave; » it is open to member states to specify whether or not a worker may take paid annual leave during sick leave; and » any rule preventing the carry over of annual leave after the end of the leave year in such circumstances is contrary to European law. As a result of this decision, the Working Time Regulations will require amendment to permit workers on long-term sick leave to carry forward annual leave and receive payment in lieu of accrued leave on termination of employment. Stringer and ors v HM Revenue and Customs, Case C-520/06, ECJ Equality at work Sexual orientation harassment - whether covers harassment on the grounds of characteristics associated with sexual orientation See EM ¶5361 The Court of Appeal has reversed the decision of the EAT in this case and held that harassment will be unlawful where it consists of homophobic mockery meted out in the knowledge that the victim is not homosexual as well as on the ground of a person’s actual sexuality, or their reputed or assumed sexuality. The Court also remarked that the same interpretation of the legislation would apply to other areas of discrimination such as race and religion. English v Thomas Sanderson Blinds Ltd [2009] IRLR 206, CA
Religion or belief discrimination - whether promoting religious belief is protected See EM ¶5383 In this case, a social worker was dismissed for misconduct following a number of incidents in which he promoted his beliefs as a Christian to service users. He claimed that he had suffered discrimination on the grounds of his religion. He failed both in the tribunal and before the EAT on the ground that the reason for his dismissal was not his religious belief but that he was improperly foisting it on clients, contrary to a clear rule of the Council. The EAT held that the tribunal was right to find that the Council would have treated any employee who inappropriately promoted any religious belief or other strong personal view in the same way. Chondol v Liverpool City Council [2008] EAT case 0298/08 Transfer of the business Effect of TUPE - insolvency proceedings with a view to liquidate assets See EM ¶7998 In this case, company A fell into financial difficulties and went into administration. The administrators concluded that there was no prospect of selling the business of A as a going concern and decided instead to sell its assets to company B who also took on the lease of company A’s premises, in order to secure more for the creditors than would be achieved by winding up. Company B took on some of A’s employees, but not the claimant who claimed unfair dismissal. The EAT held that while the primary purpose of administration is to rescue the company as a going concern, the fact that the administrators had concluded that this was not possible and instead focused on a favourable realisation of the assets meant that the special provisions did not apply. Oakland v Wellswood (Yorkshire) Ltd [2009] EAT case 0395/08
Information and consultation obligations - consulting about measures after transfer See EM ¶8071 Where the transferee envisages taking measures, he is not obliged to consult with transferring employees prior to the transfer as he is not yet their employer. The EAT has confirmed that this also applies post transfer and held that there is no obligation on a transferee to provide information to, or consult with employees after a TUPE transfer has taken place where the transferee envisages measures after the transfer has been completed. UCATT and ors v Glasgow City Council and anor [2008] EAT cases 007/08, 0014/08 Comment Note that the new employer may have other obligations to consult post transfer (see Chapter 22 on Information and consultation in the workplace and Chapter 21 with regard to collective bargaining). Ending employment Compulsory retirement ages – ECJ decision See EM ¶8201 The ECJ has given its judgment in this case (commonly referred to as the “Heyday” litigation), confirming the opinion of the Advocate General that it is permissible to have a default retirement age provided that it is justified by reference to legitimate aims, which in this case regarding the UK Government’s default retirement age of 65 would be social policy objectives. The Court confirmed that the Directive did not require member states to set out an exhaustive list of factors justifying exemptions from the Directive. The case will now return to the High Court, which will decide whether it is in fact justified in this instance. R (on the application of the Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform, Case C-388/07, ECJ Cumulative list of cases Types of employment relationship ¶53 Protectacoat Firthglow Ltd v Miklos Szilagyi Employment contract, variation and breach ¶1307 Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd ¶1313 Blue Chip Trading Ltd v Helbawi ¶1716 Bridal Fashions Ltd v Burke Flexible working ¶1983 Secretary of State for Children Schools and Family v Fletcher Time off ¶4007 Stringer and ors v HM Revenue and Customs, Case C-520/06, ECJ Sickness, injury and absence ¶4102 Stringer and ors v HM Revenue and Customs, Case C-520/06, ECJ Equality at work ¶5361 English v Thomas Sanderson Blinds Ltd ¶5383 Chondol v Liverpool City Council ¶5383 London Borough of Islington v Ladele ¶5393 London Borough of Camden v Miah ¶5435 Richmond Pharmacology v Dhaliwal ¶5476, ¶5481 SCA Packaging v Boyle ¶5515 The Child Support Agency (Dudley) v Truman ¶5535 Eastern and Coastal Kent PCT v Jocelyn Grey ¶5615 Rolls Royce plc v Unite the Union [2009] IRLR 49, HC ¶5680 Fearnon and ors v Smurfit Corrugated Cases (Lurgain) Ltd ¶5682 Wilson v Health and Safety Executive ¶5720 Potter and ors v North Cumbria Acute Hospitals NHS Trust ¶5722 Matuszowicz v Kingston upon Hull City Council Discipline and grievance ¶6732 Bridal Fashions Ltd v Burke Information and consultation in the workplace ¶7710 Darnton v Bournemouth University Transfer of the business ¶7998 Oakland v Wellswood (Yorkshire) Ltd ¶8067 Royal Mail Group Ltd v Communication Workers Union ¶8071 UCATT and ors v Glasgow City Council and anor Ending employment ¶8836 Rolls Royce plc v Unite the Union [2009] IRLR 49, HC Employment claims ¶9573 Force One Utilities v Hatfield |
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We send email updates which detail all the recent changes that have been added to our online updates page and the online version to all subscribers. These can be accessed by clicking on the updates in the emails, by using the online updates page or by using the online version of your Memo. We have selected a few of the cases most likely in our view to have a widespread impact, and summarise these below, followed by a cumulative list of all the cases covered by our 2009 updating service to date. |
