Claiming further holiday if sick during holiday leave
The European Court of Justice (ECJ) has held that a worker who is sick during his annual leave is entitled to take replacement annual leave at another time. In rescheduling the leave, the employer's interests can be taken into account but if for business reasons the replacement leave cannot be taken in that leave year the employer must allow it to be carried over to the following holiday year. For further information on this see (Pereda v Madrid Movilidad SA)
Motive and race discrimination
The Employment Appeals Tribunal has held that if disadvantageous treatment suffered by an employee is on the grounds of his or her race then it is irrelevant that the motives behind this were founded on good intentions. This case also confirmed that whilst an act of discrimination would usually constitute a breach of mutual trust and confidence and therefore support a finding of constructive dismissal, this is not necessarily always the case. In this case the employer, Amnesty International, had sought to avoid posting an employee to a role where her racial origins were perceived as causing significant risk to her and potentially to others. The motive therefore was understandable but it was still discrimination on the grounds of race. The good intention prevented it being an act of constructive dismissal. (Amnesty International v Ahmed)
Religion and belief discrimination
The Employment Appeals Tribunal has upheld an Employment Tribunal's decision that an individual's belief in man-made climate change and the existence of a moral duty to live in a way that mitigates or avoids it was capable of being a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. For further information on this see (Grainger plc and others v Nicholson)
Depriving an employee of early retirement pension was age discriminatory
The Employment Appeals Tribunal held that a Council's decision to dismiss Mr Wooster shortly before his 50th birthday so that he did not become entitled to an early retirement pension was age discriminatory. It is worth noting, however, that the Council did not attempt to put forward an argument that the discrimination was objectively justified which might have resulted in a different outcome. This decision is subject to an appeal. (London Borough of Tower Hamlets v Wooster)
Justification for age discrimination
The employer's decision to dismiss Mr Woodcock in time for his dismissal to take effect shortly before his 50th birthday, and so benefitting from enhanced retirement benefits, was held by an Employment Tribunal to be justified. The tribunal noted that cost cannot be the sole justification for discrimination but considered that preventing an employee from becoming entitled to a windfall because of his age could be a legitimate aim. This is perhaps a surprising outcome. However, it is a non-binding tribunal decision and is subject to an appeal. (Woodcock v Cumbria Primary Care Trust)
Whether ongoing pension loss should be awarded as compensation for unfair dismissal
The Court of Appeal held that the Employment Tribunal and the Employment Appeals Tribunal were wrong to award Ms Roberts compensation for ongoing pension loss where she had mitigated her loss of earnings by securing employment in a new job on more favourable terms. The tribunal had erred in considering her pension rights, which were less beneficial in her new role, separately from her other remuneration, which was better in the new role. The correct approach should have been to consider the remuneration package as a whole meaning that she had no entitlement to ongoing pension loss. (Aegon UK Corp Services Ltd v Roberts)
Retirement and age discrimination
In the so called Heyday case the High Court has held that the UK's default retirement age of 65 is lawful and that employers can objectively justify both direct and indirect age discrimination. It should be noted that the default age is to be reviewed by the Government in 2010 and that this is likely to lead to a change. (R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills)
TUPE and material detriment
The Employment Appeals Tribunal has held that regulation 4(9) of TUPE which deems an employee to have been dismissed if he suffers 'a substantial change in working conditions to [his] material detriment' must, among other things, be interpreted subjectively from the employee's point of view. This makes it easier for an employee to establish a dismissal under Regulation 4(9) and will create much greater risk of dismissals being deemed to have occurred in TUPE situations where there is any change to the working conditions of the employees transferred. (Tapere v South London and Mauldsley NHS Trust)
Constructive dismissal
The Court of Appeal has held that where an employee is constructively dismissed, the employer need not compensate him in full for the notice period if the employee has obtained alternative work elsewhere. The Court took a different approach to that in cases of actual dismissal, because in those cases it is considered good industrial relations practice to give full compensation during what would have been the notice period, had proper notice been given. (Stuart Peters Ltd v Bell)
The European Court of Justice (ECJ) has held that a worker who is sick during his annual leave is entitled to take replacement annual leave at another time. In rescheduling the leave, the employer's interests can be taken into account but if for business reasons the replacement leave cannot be taken in that leave year the employer must allow it to be carried over to the following holiday year. For further information on this see (Pereda v Madrid Movilidad SA)
Motive and race discrimination
The Employment Appeals Tribunal has held that if disadvantageous treatment suffered by an employee is on the grounds of his or her race then it is irrelevant that the motives behind this were founded on good intentions. This case also confirmed that whilst an act of discrimination would usually constitute a breach of mutual trust and confidence and therefore support a finding of constructive dismissal, this is not necessarily always the case. In this case the employer, Amnesty International, had sought to avoid posting an employee to a role where her racial origins were perceived as causing significant risk to her and potentially to others. The motive therefore was understandable but it was still discrimination on the grounds of race. The good intention prevented it being an act of constructive dismissal. (Amnesty International v Ahmed)
Religion and belief discrimination
The Employment Appeals Tribunal has upheld an Employment Tribunal's decision that an individual's belief in man-made climate change and the existence of a moral duty to live in a way that mitigates or avoids it was capable of being a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. For further information on this see (Grainger plc and others v Nicholson)
Depriving an employee of early retirement pension was age discriminatory
The Employment Appeals Tribunal held that a Council's decision to dismiss Mr Wooster shortly before his 50th birthday so that he did not become entitled to an early retirement pension was age discriminatory. It is worth noting, however, that the Council did not attempt to put forward an argument that the discrimination was objectively justified which might have resulted in a different outcome. This decision is subject to an appeal. (London Borough of Tower Hamlets v Wooster)
Justification for age discrimination
The employer's decision to dismiss Mr Woodcock in time for his dismissal to take effect shortly before his 50th birthday, and so benefitting from enhanced retirement benefits, was held by an Employment Tribunal to be justified. The tribunal noted that cost cannot be the sole justification for discrimination but considered that preventing an employee from becoming entitled to a windfall because of his age could be a legitimate aim. This is perhaps a surprising outcome. However, it is a non-binding tribunal decision and is subject to an appeal. (Woodcock v Cumbria Primary Care Trust)
Whether ongoing pension loss should be awarded as compensation for unfair dismissal
The Court of Appeal held that the Employment Tribunal and the Employment Appeals Tribunal were wrong to award Ms Roberts compensation for ongoing pension loss where she had mitigated her loss of earnings by securing employment in a new job on more favourable terms. The tribunal had erred in considering her pension rights, which were less beneficial in her new role, separately from her other remuneration, which was better in the new role. The correct approach should have been to consider the remuneration package as a whole meaning that she had no entitlement to ongoing pension loss. (Aegon UK Corp Services Ltd v Roberts)
Retirement and age discrimination
In the so called Heyday case the High Court has held that the UK's default retirement age of 65 is lawful and that employers can objectively justify both direct and indirect age discrimination. It should be noted that the default age is to be reviewed by the Government in 2010 and that this is likely to lead to a change. (R (on the application of Age UK) v Secretary of State for Business, Innovation and Skills)
TUPE and material detriment
The Employment Appeals Tribunal has held that regulation 4(9) of TUPE which deems an employee to have been dismissed if he suffers 'a substantial change in working conditions to [his] material detriment' must, among other things, be interpreted subjectively from the employee's point of view. This makes it easier for an employee to establish a dismissal under Regulation 4(9) and will create much greater risk of dismissals being deemed to have occurred in TUPE situations where there is any change to the working conditions of the employees transferred. (Tapere v South London and Mauldsley NHS Trust)
Constructive dismissal
The Court of Appeal has held that where an employee is constructively dismissed, the employer need not compensate him in full for the notice period if the employee has obtained alternative work elsewhere. The Court took a different approach to that in cases of actual dismissal, because in those cases it is considered good industrial relations practice to give full compensation during what would have been the notice period, had proper notice been given. (Stuart Peters Ltd v Bell)
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