In this article...
This year has seen some seismic shifts in employment law, courtesy of a regular stream of headline decisions from the courts and tribunals. So how does the land lie now for employers? Sara Woffenden runs through the headline decisions from 2008, and assesses the impact of the year’s developments.
The background
Back in 2002, the Employment Appeal Tribunal held (in Kigass Aero Components v Brown that workers on long term sick leave do not accrue annual leave, as employees must be at work in order to be able to take holiday. The ECJ has now been asked to consider if this was correct.
The decision
In Stringer and others v Her Majesty's Revenue and Customs, the Advocate-General said that employees on long term sick leave do accrue annual leave and have a theoretical entitlement to holiday; but they can’t actually take any holiday while they are on sick leave. However, if employment is terminated while an employee is on long term sick leave, they will be entitled to be paid in lieu for any untaken holiday.
The practical impact
Until the ECJ hands down its decision (probably at the start of 2009), the position under Kigass remains good law, i.e. that employees on long term sick leave do not accrue annual leave. However, be aware that this may change in the New Year, as the ECJ usually follows the Advocate-General’s opinion.
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The background
In James v London Borough of Greenwich, Mrs James had been engaged by the London Borough of Greenwich as a long term agency worker. The Court of Appeal was asked to consider whether such an arrangement should give rise to an implied contract of employment.
The decision
The Court of Appeal said that even long term agency workers are not ‘employees in disguise’: in most circumstances, a written contract between the end-user client and the agency should be sufficient to explain the status of temporary worker. Therefore, there is no need to imply an employment contract.
The practical impact
Provided an express contract is in place with an agency, it is now harder for agency staff to argue that they have become employees, simply by the passage of time.
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The background
Mr Malcolm was a tenant of the London Borough of Lewisham. He was evicted after he sublet his flat, in breach of his tenancy agreement. Mr Malcolm argued, in The Mayor and Burgesses of the London Borough of Lewisham v Malcolm, that he had only acted in that way because of his disability (schizophrenia) and that, therefore, he had been subjected to ‘disability-related’ discrimination.
The decision
Overturning the long-established case of Clark v Novacold, the House of Lords said that Mr Malcolm had not been discriminated against, because Lewisham had treated Mr Malcolm in exactly the same way as any other tenant who had broken the terms of their tenancy agreement; he was not entitled to any ‘special treatment’ because of his disability.
The practical impact
This decision has made it virtually impossible for disability-related discrimination claims to succeed. The knock-on effect of this is that it is now more likely that claimants will bring their claims under the reasonable adjustment provisions in the Disability Discrimination Act (DDA). For more information on the ramifications of this decision, see this month’s News Round-Up.
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The background
Ms Coleman (who is not disabled) alleges that because of her caring responsibilities for her disabled son, she was subjected to disability discrimination by her former employer. In Coleman v Attridge Law and anor, the ECJ was asked to consider whether the DDA should cover complaints of disability discrimination where the complainant is not disabled themselves. The current wording of the DDA refers only to discrimination against disabled employees.
The decision
The ECJ said that the DDA should be interpreted so that it applies to all discrimination on the grounds of disability, not just to discrimination aimed at disabled people.
The practical impact
Employment tribunals are now likely to read additional words into the DDA, so that it applies to ‘associative discrimination’, i.e. discrimination on the general grounds of disability. The current wording of the DDA will be amended in due course, to reflect the ECJ’s decision.
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How much further forward are we now than we were at the beginning of the year? In summary, we now know that:
- for the time being, employees on long term sick leave do not accrue holiday, but this may change if the Advocate-General’s opinion is followed;
- agency workers are now less likely to be deemed employees;
- disability-related discrimination claims are unlikely to succeed, but reasonable adjustment claims are likely to increase;
- Employment Tribunals are now likely to read additional words into the DDA so that it covers ‘associative discrimination’.
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