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Employment law specialists
March 2017 Review

Welcome to our latest monthly employment law review. As is usual at this time of year I should begin with a reminder of the new rates for minimum pay and for various employment related benefits. Increases in the living and minimum wages, effective from 1 April are as follows:

  • apprentices - £3.40 to £3.50;
  • 16-17 year olds - from £4.00 to £4.05;
  • 18-20 year olds - from £5.55 to £ 5.60
  • 21-24 year olds - from £6.95 to £7.05; and
  • 25s and over - from £7.20 to £7.50

From 2 April the standard rates for statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay increased from £139.58 to £ 140.98 per week while, from 6 April, the standard rate for statutory sick pay has increased to £89.35 per week.

Also from 6 April the maximum basic award for unfair dismissal / statutory redundancy payment is £14,670 and the maximum compensatory award for unfair dismissal increases to £80,541.

This month's reports cover cases dealing with the procedure to be followed when considering dismissal following long term sickness absence, the latest analysis by the Court of Appeal concerning when a notice of termination of employment is effectively served, important decisions from the European Court concerning bans on wearing religious headscarves at work and an analysis of rates of sickness absences (which are at an all time low).

If you have time please check out our blog and Twitter feed for frequent employment law news of particular interest to SMEs. You can also find out about our subscription services on our website.

Kind regards,

Martin Malone

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This month's news
  meeting   When does it become fair to dismiss an employee for long term sickness absence?
 
by Martin Malone
 

We are often asked what is the best approach to dealing with an employee who has been on extended sick leave. In general, it is necessary to establish that the employee is not going to be fit to return to work (on a full or partial basis) for the foreseeable future. Without this there is the risk that the employee could contend that they were about to return when they were dismissed or there could be a sudden improvement in condition which might curtail the expected absence. Of course, that assessment requires medical evidence so the process normally involves engaging the services of an occupational health consultant. Employers also need to be aware of potential disability issues.

These issues were recently considered by the Court of Appeal in O'Brien -v- Bolton St Catherine's Academy. Ms O'Brien commenced work with the employer as an ICT teacher in 2005. In 2011 she was assaulted by a pupil. She did not suffer severe physical injuries but she was very shaken. On her return to work she was concerned that the school was not taking adequate steps to protect her. In particular she was dissatisfied with a refusal to reinstate a policy under which pupils who assaulted staff were automatically excluded.

In December 2011 she went off sick with a diagnosis of stress at work. After more than a year off work she was dismissed on 31 January 2013 on the ground of medical incapacity. Her appeal against the decision to dismiss was rejected. Ms O'Brien presented a complaint of unfair dismissal to an employment tribunal. She also claimed that her illness constituted a disability and that she was either dismissed in circumstances giving rise to direct disability discrimination or that she suffered unfavourable treatment on account of her disability. She also claimed wrongful dismissal (breach of contract) because the school paid her in lieu of notice when it was not entitled to do so, as well as claiming arrears of holiday pay.

Her claims for automatic unfair dismissal and direct discrimination failed, as did the claim for holiday pay. However, she was found to have been unfairly dismissed and subjected to less favourable treatment on account of her disability. There was also a finding of wrongful dismissal.

In June 2015 the Employment Appeal Tribunal (EAT) found in favour of the school (save in respect of the relatively minor claim for wrongful dismissal). Ms O'Brien appealed to the Court of Appeal and judgment was handed down on 15 March 2017. Lord Justice Underhill considered the relevant law. He noted that evidence had been presented on behalf of Ms O'Brien at the hearing of the initial appeal against dismissal indicating that, according to an associate psychologist, there was, as at February 2013, a diagnosis of mild depression and severe anxiety. There was also a reference to post traumatic stress disorder but it was unclear whether this was in fact diagnosed. She contended that she was fit to return to work. In its decision on appeal the school determined that Ms O'Brien was not fit to return to work because her condition had not been fully treated and accepted that she was disabled within the meaning of the Equality Act 2010.

 
Read more
 

  CJEU   Does a ban on wearing headscarves amount to direct discrimination?
 
by Martin Malone
 

In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In  Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions the European Court was asked to consider a case which was referred from the Hof can Cassatie (Court of Cassation) in Belgium, where the respondent, G4S, operated from 2006 a policy of neutrality which prohibited the visible wearing of any political, philosophical or religious signs.

Samira Achbita, a Muslim, was employed as a receptionist with G4S in 2003. In 2006 she told her employer that she wanted to start wearing an Islamic headscarf during working hours. After a period of absence due to illness she notified her employer on 12 May 2006 that she was returning to work on 15 May and would be wearing the headscarf. On 29 May the G4S works council approved an amendment to workplace regulations which provided that, with effect from 13 June 2006 "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs". On 12 June Ms Achbita was dismissed because she refused to accept the new policy.

The CJEU noted that G4S's rule covered any manifestation of political, philosophical and religious beliefs without distinction. The rule was not applied to Ms Achbita in a way which was different from the way in which it would be applied to any other employees. Consequently, there was no direct discrimination.

However, such a prohibition could constitute indirect discrimination if the apparently neutral obligation in fact resulted in people adhering to a particular religion or belief being put at a particular disadvantage. Even if that was the case there could nonetheless be a legitimate aim such as the pursuit of a policy, in relation to customers, of political, philosophical and religious neutrality, provided that the means of achieving that aim were appropriate and necessary. In that case the policy might be maintained, for example, by allowing Ms Achbita to wear hear headscarf at work, but not in a role which involved any visual contact with customers, as an alternative to dismissal. The matter was referred back to the Belgian court for further consideration accordingly.

Also reported at the same time was the case of Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers. In this case, prior to being recruited by Micropole, Asma Bougnaoui was told that wearing her headscarf might pose a problem if she was in contact with customers of the company. Initially Ms Bougnaoui wore a bandana during her internship. Thereafter she wore a headscarf. A customer complained and, relying on the principle of neutrality, the employer asked her to stop wearing the headscarf.

 
Read more
 

  doctors surgery   Sickness absence at an all time low
 
by Martin Malone
 

The Office for National Statistics has published its annual report on sickness absence covering 2016, revealing that overall sickness absence was the lowest since records began in 1993. There were an estimated 137.3 million working days lost, equivalent to 4.3 days per worker.

The most common reasons for absence were coughs and colds (accounting for 34 million days/24.8%), followed by musculoskeletal problems including back pain, neck and upper limb problems (30.8 million days/22.4%). After "other conditions" the next distinct category was mental health issues, including stress, depression and anxiety, which accounted for 15.8 million days/11.5%.

The statistics reveal that there has been a steady reduction in the overall number of sickness absences over a number of years.

The demographic breakdown highlights higher rates of sickness absence for women (2.5% versus 1.6% for men). Older workers (2.9% for over 65s) are, unsurprisingly, more likely to be absent than younger ones (1.5% for ages 16 to 34). In this context it is notable that the employment rate of those aged over 65 has more than doubled since 1993 and at October to December 2016 stood at 10.4% of the workforce (1.2 million people). While this trend indicates a need for employers to deal with more sickness absences, assuming that it continues in coming years, it is perhaps surprisingly counteracted by a reduction in the rate for 50 to 64 year olds from 4.4% to 2.7%.

The statistics revealed a 2.5% absence rate for smokers by comparison with 2.3% for ex-smokers and 1.6% for those who have never smoked.

The regional breakdown reveals that the highest sickness absence rates are in Wales and Scotland, followed by North East and North West England, while the lowest rates are in London and the South East. The research explains that this is because of the younger age profile in the latter regions, combined with a concentration of high-skilled jobs (which tend to have lower absence rates).

 
Read more
 

  recorded delivery   Communicating notice of termination of employment - when does the notice period start?
 
by Martin Malone
 

In many situations the date on which someone receives notice of termination of employment and the corresponding date on which termination takes effect are neither here nor there. In other cases they can be critically important. One such case was recently considered by the Court of Appeal in Newcastle Upon Tyne NHS Foundation v Sandi Haywood.

Mrs Haywood was employed as an associate director of business development at Newcastle PCT from November 2008 to April 2011. She was on a salary of £84,446 p.a. and her contract provided for a minimum notice period either way of 12 weeks. Following a merger in April 2011 her contract was transferred to Newcastle Upon Tyne NHS Foundation. She was advised that she was at risk of being made redundant and a discussion meeting took place on 13 April 2011. It was confirmed at the meeting that no decision had been made about redundancy, alternative posts were considered and she was informed that she would be entitled to an NHS pension of about £200,000 if she was made redundant after 20 July 2011. She accepted that her post was redundant.

Mrs Haywood commenced sick leave immediately, brought on by the stress of the meeting. She commenced annual leave on 18 April and was on holiday in Egypt from 19 to 27 April. She remained on sick leave until 20 May 2011.

Her redundancy was confirmed. However, the key question left to be answered was whether she received her 12 weeks' notice of dismissal before her 50th birthday on 20 July since that would have a significant effect on her pension entitlement. The employer maintained that notice was given that would expire before her birthday but she did not read the letter until her return on 27 April, so that if notice was calculated from that date it would expire after her birthday.

Notice was provided in a recorded delivery letter which was collected from the sorting office by her father in law on 26 April. There was an email to Mrs Haywood's husband's email account, which was sent on 20 April at 10:55. A letter was also sent by normal post but this was disregarded as an effective method of communication. All the communications provided 12 weeks' notice purportedly terminating on 15 July 2011. Mrs Haywood was also placed on garden leave. For the notice period to include her 50th birthday the notice would need to have been served by 26 April 2011. Mrs Haywood said that she opened the recorded delivery letter at 08:30 on 27 April and Mr Haywood did not read the email until 10:14 on the same day.

Sitting in the High Court in Leeds Judge Raeside QC decided that she was only given notice when she read the letter so that she remained employed up to and including her 50th birthday. She was therefore entitled to the better pension terms. The employer appealed and the matter was heard by the Court of Appeal in mid-February 2017 with judgment handed down on 17 March.

 
Read more
 

Lexcel
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Designed from the ground up and provided only by Canter Levin & Berg Solicitors, we act for organisations nationwide. Our unique proposition has always been to deliver a prompt, efficient, and personal service to our subscribers through the provision of direct access to our specialist employment solicitors.

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Katharine Kelly
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Katharine specialises in making sure that employers have all their employment law and HR requirements in place and up to date. Her pleasant manner is combined with her knowledge of employment law issues from a legal perspective so that she makes sure that employers have maximum protection and immediate support in connection with all problems which they may encounter on a day to day basis.

Katharine is "on call" to deal with her clients in a way which her clients really appreciate. She will always take the next step to make sure that problems are solved quickly, efficiently and professionally.

     
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Sean Carty
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Sean joined the Employment Department of Canter Levin & Berg in December 2007. He has experience in all areas of employment law though specialises in Employment Tribunal litigation. Sean has particular expertise in dealing with complex discrimination matters, business reorganisation and redundancy, and unfair dismissal. He also deals with company disputes, breach of contract claims and injunctions, including claims relating to breaches of restrictive covenants.

     
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       Martin Malone
Martin Malone
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Martin is a director of Canter Levin & Berg Limited and its Chief Operating Officer. He splits his time between employment law and practice administration. He has over 25 years' experience dealing with a wide range of employment disputes.

He combines his experience in employment law with insolvency, intellectual property and company/partnership disputes.

     
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