Employment Law Brief | December 2018

Please contactLiz HenryorJames Austinto discuss any of of the issues raised.

1. 1. 1. Can you dismiss an employee on long-term sick leave?
      2. Why you shouldencourage your employees to take their holidays
      3. If you're paid half the salary, should you be working half the hours?
      4. Are you classifying your workers correctly?
      5. It's going down the pan... are your work toilet facilities adequate?
      6. Will self-employed workersbecome entitled to shared parent leave?

Can you dismiss an employee on long-term sick leave if they're entitled to permanent health insurance?

In Awan v ICTS UK Ltd the Employment Appeal Tribunal 'EAT' decided that an employer cannot dismiss an employee who is eligible for permanent health insurance (PHI) if the reason for dismissal is that the person is unable to perform the role. The decision in Anwan suggests this will be the case even if there is a clause specifically allowing the employer to terminate for incapacity, if there is also a contractual right to PHI.

This is an issue which comes up frequently. Those of you who attend our seminars will know there can be ways of fairly dismissing an employee in similar circumstances. Contact James if you are faced with this situation.

Why you should encourage your employees to take their holidays

In recent years case law has told us that employees will be entitled to carry over accrued but untaken holiday to the next holiday year if sickness, pregnancy or a handful of other reasons meant they were unable to take the holiday during the year in which it accrued.

In the joint cases of Kreuziger v Berlin and Max-Planck-Gesellschaft zur Forderung der Wissenschaften eV v Shimizu, the European Court of Justice has now held that employees who are not on sick or other leave may be entitled to carry holiday into the next holiday year if their employer hasn't enabled them to take accrued leave in the holiday year it accrued. We can't be sure how UK tribunals and courts will interpret these decisions but they appear to put the onus on employers to encourage staff to take their holidays. Based on previous case law, we would expect that any holiday carried over will expire within 18 months of the end of the holiday year in which it accrued.

If you're paid half the salary, should you be working half the hours?

As the name suggests, the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 aim to prevent less favourable treatment of part time employees.

In British Airways plc v Pinaud, British Airways required full time cabin crew pursers to be available to work 243 days a year whilst a part time employee who was paid half the full time wage was required to be available to work 130 days a year (53.5% of the full time employee's days). The Employment Appeal Tribunal (EAT) found this meant the part time employee had been treated less favourably in respect of pay. If they are to avoid compensation British Airways will now have to convince the EAT that the treatment was objectively justified.

Are you classifying your workers correctly?

The EAT has held that drivers working for Addison Lee are "workers", rather than self-employed. This means they are entitled to various rights including the minimum wage, holidays and rest breaks. The drivers in question were required to log on to an app in order to work for the company. The EAT took this into account along with the fact that the drivers were regularly offered and accepted work.
This is yet another reminder that stating someone is self-employed doesn't mean the courts will view them as such. Contact us if you're concerned that self-employed people engaged by you may argue they are employees or workers.

In September, the ICO announced that it had commenced formal enforcement action against 34 organisations that have failed to pay the data protection fee. Fines range from £400 to £4,350. Please contact Jamesif you're unsure of whether you need to a pay a fee.

It's going down the pan...are your work toilet facilities adequate?

Following on from World Toilet Day (yes, you read that correctly!) the union Unite has claimed that thousands of UK workers do not have access to decent toilets in the workplace. Unite has published a number of anecdotes aimed at highlighting the issue including a story about bank workers who were asked to use a bucket to reduce time away from work.

According to HSE guidance, employers must provide "adequate" toilet and washing facilities "so far as is reasonably practicable", including enough facilities for the number of workers, separate bathrooms for men and women and a supply of toilet paper.

Will self-employed workersbecome entitled to shared parental leave?

A Bill has been published which aims to extend the concept of shared parental leave and pay to self-employed workers, and would allow the mother's statutory maternity allowance to be shared with her self-employed partner. We'll let you know if it becomes law.

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