Issue 99 - February 2008

Q; What’s the most difficult question in the World?

A; there may be more than one answer to this question, but one of them has to be; “What happens to an employee’s holidays during sick leave?”

This month the Advocate General (in Stringer & Ors v HMRC) has said that a worker can accrue paid annual leave while off sick but they cannot take that paid annual leave during their sick leave.

He added that on termination of employment workers are entitled to compensation for annual leave which has accrued but has not been taken due to illness.

This opinion continues to confuse this complicated area of law due to the way it grinds against the operation of the Working Time Regulations 1998 (WTR). The WTR state that employers do not need to let employees carry untaken holidays into a new holiday year and confirm that holidays untaken in any holiday year are effectively lost.

Consider the company that has a holiday year January to December and gives full time staff 29 days’ holiday each year inclusive of bank holidays (i.e. 5.8 weeks, the law requires 5.6 weeks from April 2009). An employee goes sick in October who before she took ill only took 10 days’ leave (having accrued 24). Unfortunately she is unable to return to work before January and loses 19 days’ holiday. What should you do?

What if the same employee returned to work just before the end of the holiday year; there is no time to take the days off and do the two months on sick leave count towards the accrual of holiday? What should you do?

If one assumed that the employer should pay for her “lost” holidays, is that at the end of the holiday year or on the termination of employment? What if the employment continues for many years beyond this event and the employee’s salary is twice what it was at the time of the lost holidays; at what rate do you pay?

...what if you don’t believe that the employee is really sick?

What we know is that; (i) whilst there are rules about treatment of disabled workers, it is possible to manage sick employees and that management can be robust if necessary, (ii) staff cannot bring claims for unlawful deductions for holiday pay without first having raised a statutory grievance about the matter, (iii) there is usually a solution to all problems without having to go to court, and (iv) this is one of the most difficult questions in the world!

Discrimination of Carers?

In another opinion of the Advocate General (in the case of Coleman v Attridge Law & Steve Law), it is said that the European Directive which underpins the Disability Discrimination Act 1995 (DDA) prohibits direct discrimination and/or harassment by association. He said that the Directive makes it unlawful for employers to treat employees less favourably than others (on the grounds of sex, race, disability etc.). He went on to say that this does not change when the employee who is the object of discrimination is not disabled themselves; the Directive protects against discrimination “on the grounds of” disability, and the “ground” which serves as the basis of the discrimination the employee suffers continues to be disability - just not theirs.

Although the Coleman case was about disability this opinion extends to all forms of prohibited grounds.

As the DDA does not prohibit discrimination by association and if the ECJ were to follow the opinion it will be for Miss Coleman to persuade the UK courts to interpret the DDA in a way consistent with this opinion. The Government may need to change the relevant legislation if this happens.

Quickfire

• By proposed amendments to the Pensions Bill, the government plans to prevent employers from asking applicants about their pensions at job interviews. This is due to concerns that employers will try to upset plans which from 2012 (subject to an employee opting out) will require employers to pay at least 3% of an employee’s basic salary into a personal account. The TUC considers that it will be necessary to give candidates who have been “discriminated” in this way a right of redress before the Employment Tribunal.
• When considering whether a medical condition is a long term condition and likely to recur for the purposes of the Disability Discrimination Act 1995, Employment Tribunals will only consider evidence available at the time of the alleged discrimination. Richmond Adult Community College v Elizabeth McDougall.

If you would like advice on any of these matters or any other employment law issue please contact Jolyon Berry from our Ipswich office (01473 406356), or Jeanette Wheeler in our Norwich office (01603 756427).

The content of this document is for general information only. As always, specific professional advice should be taken on each individual matter © Birketts LLP 2008. Solicitors regulated by the Solicitors Regulation Authority. Birketts LLP is constituted as a limited liability partnership in accordance with the Limited Liability Partnerships Act 2000.

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