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In This Issue:
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Welcome |
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Key European opinion on disability
discrimination |
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Tackling illegal working |
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Last minute claims |
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Holiday pay opinion |
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Extra power for European claims |
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Recurring disability |
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And some snippets... |
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Featured Links:
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Welcome
This month sees an important opinion
handed down by the Advocate-General which if followed by
the European Court of Justice itself has wide-reaching
implications for UK discrimination legislation.
Another Advocate-General’s opinion addresses holiday pay
while from the UK courts and tribunals come decisions on
territorial jurisdiction, redundancy consultation,
protective awards, time limits for lodging claims, and
recurring disability.
Legislation coming into force at the end of the month
means employing an illegal migrant could result in a
£10,000 fine, while a new private member’s Bill aims to
provide disabled workers with the right to be assessed
for rehabilitation leave.
Malcolm Davies
Andersons Solicitors
Key European opinion on disability
discrimination
The EC Equal Treatment Framework
Directive not only protects disabled employees from
direct discrimination but also employees associated with
disabled people, such as their carers, according to a
key opinion delivered by the Advocate-General at the
European Court of Justice.
Although his opinion is limited to disability
discrimination, he indicates that the same principle
also applies to any of the other grounds prohibited in
the Directive, that is religion or belief, age or sexual
orientation.
If the ECJ follows the Advocate-General’s opinion –
which is highly likely - the Government may need to
change a raft of relevant legislation to bring it into
line with the Directive.
Tackling illegal working
Employers face a fine of up to £10,000
for every illegal migrant they employ under new measures
coming into force on 29 February.
The fine forms part of a new civil system created under
the Immigration, Asylum and Nationality Act 2006 which
also puts in place a new criminal offence of knowingly
using illegal migrant labour. This carries a maximum
two-year jail sentence and/or unlimited fine.
Last minute claims
The Employment Appeal Tribunal has
clarified the meaning of regulation 15 of the Employment
Act 2002 (Dispute Resolution) Regulations 2004, which
allows a three-month extension to allow an internal
appeal to conclude before an unfair dismissal claim is
lodged.
In the case in question, the employee’s appeal was
dismissed by the employer at 6pm on the last day of the
initial three-month period, which meant that at midnight
that night there was no pending appeal and so no
automatic entitlement to a further three months in which
to lodge the claim.
However, the EAT said that since the purpose of the
statutory disciplinary and grievance procedures was to
discourage tribunal proceedings before the internal
appeal was decided, in such circumstances it was not
reasonably practicable to do so within the normal
three-month period.
Holiday pay opinion
Holiday entitlement accrues while a
worker is off sick, according to an opinion delivered by
the Advocate-General in the European Court of Justice in
a case concerning entitlement under the Working Time
Regulations 1998.
Workers may not take paid holiday while on sick leave,
and after their contract has been terminated they are
entitled to a compensatory payment to reflect any leave
accrued but not taken – even if the worker was on sick
leave for the full holiday year.
The opinion – if (as is likely) followed by the European
Court of Justice – will overturn a decision of the Court
of Appeal to the effect that holiday pay should not
accrue while a worker is off sick.
Extra power for European claims
Different rules on territorial
jurisdiction apply depending on whether the legislation
is primarily a UK concept – such as unfair dismissal –
or derives from European law, the Employment Appeal
Tribunal has ruled.
Where the measure is underpinned by European law, a
weaker link with the UK may be enough to bring a case
within the jurisdiction of UK tribunals, as the courts
should strive to give effect to the European
legislation.
The case in question concerned a German lorry driver
whose contract of employment was with a company
registered in England and provided that English law
applied – even though he never worked in the UK.
The EAT ruled – in line with an earlier House of Lords
decision - that while he could not bring claims for
unfair dismissal (a UK concept), he could nonetheless
pursue a claim under the Working Time Regulations 1998
as these derived from EU law.
Recurring disability
The Court of Appeal has addressed the
question of whether a claimant qualifies as disabled if
their symptoms have ceased but are likely to recur, by
ruling that a tribunal cannot take subsequent events
into account.
The particular case concerned a woman whose job offer
was withdrawn when it emerged that she suffered from a
persistent delusional disorder, even though she had not
had an episode for three years.
She suffered a relapse soon after the job offer was
withdrawn, and the Employment Appeal Tribunal held that
the employment tribunal should have considered this when
deciding if her symptoms were likely to recur. The Court
of Appeal has now ruled that this approach is not
permissible – a likely recurrence must be judged at the
time of the discriminatory act without considering
subsequent events.
And some snippets...
Health and safety merger
Legislation abolishing the Health and Safety Executive
and the Health and Safety Commission and replacing them
with a single body has now been laid before Parliament.
The aim of the merger is to bring ‘governance
arrangements in line with best practice and strengthen
the links between strategy and delivery to allow the
level of accountability expected of a public body in the
21st century’, according to the HSC.
HSE campaign
The Health and Safety Executive is running a new
campaign this month and next highlighting the dangers of
slips, trips and falls in the workplace. Details
here.
Redundancy consultation
The Employment Appeal Tribunal has reaffirmed that an
award of 90 days' pay should normally be awarded to each
employee where the employer has failed to engage in
collective consultation over prospective redundancies.
Minimum consultation periods are 30 days where between
20 and 99 employees are being made redundant, and 90
days where over 100 employees are being made redundant.
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About Andersons
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Andersons offer a comprehensive employment law service
to a broad client base comprised mainly of quoted and
private companies, public authorities, charities and
private individuals, many of whom are household names.
Our expertise covers all aspects of employment law and
in particular matters relating to litigation,
re-organisations, severance, training and general HR
advice. We act for clients on a nationwide basis and
represent clients all over the country in Employment
Tribunals, the Employment Appeal Tribunals and other
courts.
If you require advice or assistance in respect of any
particular matter, please contact Malcolm Davies on
davies@andersonssolicitors.co.uk . For more
information about Andersons, please see our website
http://www.andersonssolicitors.co.uk .
Disclaimer
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The information and any commentary contained in these
bulletins is for general information purposes only and
does not constitute legal or any other type of
professional advice. Andersons Solicitors do not accept
and, to the extent permitted by law, exclude liability
to any person for any loss which may arise from relying
upon or otherwise using the information contained in
these bulletins.
If you have a particular query or issue you are strongly
advised to obtain specific, personal advice about your
case or matter and not to rely on the information or
comments in this bulletin.
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