Ince & Co – Employment Law
The Equality Bill 2010
The Equality Bill received Royal Assent on 8 April 2010 and became the Equality Act 2010. The majority of its provisions will come into force in October 2010. This is arguably the most important and long-anticipated piece of employment legislation due to come into force this year.
The Act aims to unify and re-state existing discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief and age, adopting a common approach where proper. It introduces some important adjustments particularly in relation to gender pay discrimination and the introduction of new varieties of disability discrimination.
Clearly it is critical that all employers are familiar with their obligations under the Act and it may be required to issue new workplace policies setting out the employer’s anti-discrimination policies. We will be issuing further bulletins on this during the course of the year.
New “Fit Notes”
Under the Social Security (Medical Evidence) Regulations 2010, with effect from 6 April 2010, the standard sick note will be replaced with a ‘fit note’. This indicates a GP will indicate whether or not an employee is fit for function and suggest actions that an employer can take to facilitate an employee’s return to the workplace. This is developed to tackle the dilemma of employees’ long-term absences from function by producing it less complicated for partially-fit workers to return to work. Suitable adjustments for a partially fit employee could consist of permitting a phased return to the workplace, altered working hours or permitting working from a various location. The Government intends to publish far more detailed guidance for people, employers and healthcare specialists shortly.
Employers need to therefore now be in a position to encourage partially fit workers to get back into the workplace. Nonetheless, there could be increased possible for disputes with employees relating to the scope of adjustments that could be required to accommodate their return and cautious consideration ought to be given to producing these adjustments as reasonable as possible.
Sickness during holiday
Shah v 1st West Yorkshire Limited
In our October 2009 Employment Law Update we reported on the case of Pereda v Madrid Movilidad in which the European Court of Justice (ECJ) held that the Working Time Directive (implemented in Excellent Britain by the Working Time Regulations 1998) requires workers on sick leave in the course of a period of scheduled annual leave to be given the proper to take annual leave at a later date. This has now been deemed and applied by the domestic courts.
The Working Time Regulations 1998 give workers a correct to 5.6 weeks leave per year. At least four weeks of that leave can only be taken in the leave year to which it relates.
In this case, Mr Shah’s holiday year under his contract of employment ran from 1 April to 31 March. Mr Shah booked a 4 week holiday from 22 February to 21 March 2009 (accounting for 12 days of his annual holiday entitlement as he worked a 3 day week). Nonetheless, Mr Shah broke his ankle and was absent from work between 15 January and 18 April 2009. His sickness absence as a result overlapped with his holiday period. In April 2009, Mr Shah asked his employer if he could reclaim his 12 days holiday but was refused on the basis that this holiday related to a previous holiday year and had consequently been lost.
The Tribunal held that national law should follow the ECJ choice in Pereda and permit an employee who falls sick in the course of a period of annual leave to take that annual leave subsequently within the holiday year or, if time does not permit, within the following leave year.
As a result of this choice, employers may possibly wish to contemplate implementing policies and procedures for the reclaiming of holiday time lost due to illness.