Employment Law E-Bulletin - Oct 2006

Cases

Enhanced Redundancy Payments  - Keeley v Fosroc International Limited

The Court of Appeal decided that where a staff handbook contains details of an enhanced redundancy payment, there is a presumption that it has contractual status, rather than merely ‘policy’ status and can be relied upon by an employee to bring a breach of contract claim.

View the Keeley Bailii case report

Fixed Term Contracts - Adeneler & Others v Ellinikos Organismos Galaktos

From 10 July 2006 employees who have been employed under two or more fixed term contracts for a continuous period of four or more years will be deemed to be permanent employees unless the continued use of fixed term contracts can be objectively justified.  In Adeneler & Others v Ellinikos Organismos Galaktos the European Court of Justice has provided a definition with regard to objective reasons in relation to continuing with a fixed term contract.  The Court stated that “objective reasons” means “precise and concrete circumstances characterising a given activity, which are therefore capable in the particular context of justifying the use of successive fixed term contracts”.  This is an exceptionally high test for any employer to satisfy, and an employer should be wary of trying to do so.

View the Adeneler Bailii case report

Time Period - Jeffrey v Secretary of State for Education

The Employment Appeal Tribunal in Jeffrey v Secretary of State for Education has stated that when an employee changes from a series of part-time contracts to a full-time contract it is a fundamentally new contract. The time period for claims to be brought by the employee relating to any part of their part-time contract therefore runs from the end of that particular contract. This is particularly relevant for part time pension claims, where the time period is 6 months from the end of the part-time contract.

Disciplinary Discrimination – Reasonable Adjustment - Tarbuck v Sainsbury Supermarkets Limited

The Employment Appeal Tribunal has held that the duty to make reasonable adjustments does not extend to consulting a disabled employee about what adjustment ought to be made.  They have stated “there is no separate and distinct duty” to consult.  The result of this is that it is for the employer to make reasonable adjustments that it sees fit, but any suggestions made by the employee should be taken into account.  However, the employee does not have the right to insist that they have a meeting to discuss what adjustments be made.

Read the full EAT Judgment

Equal Pay - Cadman v Health and Safety Executive

The European Court of Justice has ruled that employers do not need to provide specific justification for using length of service as a criterion in a pay system, even where that results in an unequal pay as between men and women.  Only if a worker can provide evidence raising serious doubts as to the appropriateness of rewarding experience in this way, having regard to the particular job in question, would such justification be required.  This is an important decision for employers within the UK as statistics show that up to 36% of UK employees are remunerated by a system based on length of service.

View the Cadman Bailii case report

Statutory Sick Pay – Compensation - Langley & Other v Burso

The Employment Appeal Tribunal has stated that although it is good practice to pay in lieu of notice to a summarily dismissed employee, if the employee is on statutory sick pay, and the contractual notice period is greater than the statutory notice period, they will not be entitled to full pay.  If, however, the employee is on statutory sick pay, and their notice period is only that of the statutory notice period, or up to one week in excess of the statutory notice period they will be entitled to full pay, for that notice period.

Read the full EAT Judgment here

Disability Related Sick Leave - O’Hanlon v Commissioners for HM Revenue and Customs

The Employment Appeal Tribunal has decided that an employer is not obliged to amend its sick pay policy to give a disabled employee on disability-related sick leave full pay as part of its duty to make reasonable adjustments.  The Employment Appeal Tribunal stated that it would be a rare case where the adjustment proposed (effectively giving a greater level of sick pay to disabled employees than other sick employees) would be a reasonable adjustment.  It is a material and substantial reason not to alter the sick pay rules for disabled employees.

Read the full O'Hanlon EAT Judgment here

October 2006 - Legislation Update

For further information on these or any other employment law matters, please contact Burnetts' employment law team on 01228 552222