The Practical Lawyer

Last year, the ECJ held that workers who are sick during a period of annual leave have the right, on request, to take annual leave at a later date (Pereda [2009]). Thus, a sick worker does not lose holiday, and can insist that holidays are carried over to the next holiday year.

ASDA has secured a big win in unilaterally varying its contracts of employment. In doing so, the company relied upon a term that said the company:

‘Reserves the right to review, revise, amend or replace the contents of this handbook, and introduce new policies from time to time reflecting the changing needs of the business and to comply with new legislation.’

ASDA argued that this allowed it to unilaterally change its contractual terms. The EAT agreed. But, there are two potential pitfalls that any other employer should watch out for (and which ASDA avoided in this case):

Ambiguity: if there is any ambiguity then it should be construed against the employer (on the basis of Wandsworth [1998]). But, ASDA’s clause was clear and unambiguous.

The CA has held that employees transferred under TUPE are not entitled to benefit from subsequent changes to a previous collective agreement.

Employees must give the appropriate notice before they can take their annual holiday.

Under the Working Time Regs, workers must give notice in advance of intended holiday dates, and that notice must be twice as many days as they wish to take (eg if a worker wants ten days leave then 20 days working notice must be given). Note that the statutory provision can be varied by the employment contract, so that even longer notice is required.

The Protection from Harassment Act 1997 was originally introduced to deal with the problem of stalkers. Since then, there have been ongoing attempts to extend it to the workplace.

We now have a CA decision in which the employee succeeded in a 1997 Act claim, although the case was described as ‘extraordinary’. The case involved an employee who felt that she had been singled out by her line manager (picked on in front of other staff; told to fuck off; had a letter of complaint ripped up without even being read).

In the view of the CA, the starting point in such cases has to be whether the conduct is oppressive and unacceptable, as opposed to ‘merely unattractive, unreasonable or regrettable’, with the court having to keep in mind that the conduct must be of an order that ‘would sustain criminal liability’. In particular, the court considered the ongoing debate as to whether it is sufficient for the conduct to merely be criminal in nature (even if trivial). At first instance, the Recorder had taken the view that no sensible prosecuting authority would have regarded this as worth prosecuting over, and that any prosecution would have been brought to an end as an abuse of process. But, in the CA’s view, that was the wrong approach; the court should focus on the overriding concern that the conduct be oppressive and unreasonable – and not get distracted as to whether or not it would have been sufficiently serious to justify prosecution. As such, the decision moves away from the previous focus on the requirement of criminal prosecution, to that of the quality of the conduct (albeit with there having to be some criminal standard). Thus, the end result is that defendants can no longer raise the argument that a prosecutor would have been reluctant to prosecute, but instead will have to face the complaints on their merits and argue that the conduct alleged is not oppressive and unreasonable.

At first sight, this decision would seem to make it much easier to bring 1997 Act claims. But, the CA did go out of its way to offer this warning:

‘It is doubtful whether the legislator had the workplace in mind when passing an Act that was principally directed at stalking... It should not be thought from this unusually one-sided case that stress at work will often give rise to liability for harassment. I have found the conduct in this case to be ‘oppressive and unacceptable’ but I have done so in circumstances where I have also described it as ‘extraordinary’. I do not expect that many workplace cases will give rise to this liability. It is far more likely that, in the great majority of cases, the remedy for high-handed or discriminatory misconduct... will be more fittingly in the Employment Tribunal.’

So, the CA has made it easier to bring such claims, but at the same time done what it can to discourage them. See excellent commentary on ?Veakins v Kier [2009] EWCA Civ 1288 in [2010] NLJ 198.

A collection of points on discrimination:

Job ads: an ad saying applicants should be ‘in the first five years of their career’ was indirect age discrimination (?Rainbow [2008]). An ad for a sales rep with ‘youthful enthusiasm’ was discriminatory – a finding largely based upon the questions asked in the interview (about ‘motivation’, ‘enthusiasm’, ‘drive’ and ‘energy’) being asked of an older applicant, but not of younger applicants (?McCoy [2007]).

The CA has upheld an injunction holding employees to their contractual notice period, but preventing them from working. Although there was no garden leave provision in the contract, the court allowed the employer to rely on a suspension clause to prevent the employees working during the notice period.

Case law shows that it is the exception, rather than the rule, for expatriate employees to receive the benefits of UK employment law. Typical of this is Hughes v Dick [2009] where a UK ex-pat employee had worked abroad for the branch office of a company incorporated in England. His employment was terminated by a letter sent by the UK company, and he brought a claim for unfair dismissal. The CA decided that no jurisdiction arose, since his connection with Great Britain was insufficient to provide him with the protection of UK employment law. The fact that he worked for the branch of a UK company, and was a UK national recruited in the UK, was not enough; all his work had been carried out abroad and it was in the context of substantial business operated abroad.

It is worth noting that the new ACAS code on disciplinary and grievance procedures does not apply to redundancy.

What should an employer do if he feels that an employee is taking advantage of sick pay provisions (eg to avoid disciplinary proceedings)?