Employment Law E-Bulletin

Cases: Feb 08

Stringer v HMRC (Previously Ainsworth)

The Advocate General has handed down her opinion concerning this key case which deals with holiday pay for workers off on long term sick leave.

The opinion of the Advocate General is not the decision, but decisions of the ECJ are often in line with opinions given on the case.

When the case last came before the English Courts, the Court of Appeal held that the right to accumulate annual statutory holiday does not apply when a worker is on long term sick leave for more than one year.  However, the opinion of the Advocate General (if followed by the ECJ) would reverse this decision.   The Advocate General’s opinion is that statutory holiday should accrue whilst a worker is on long term sick leave for more than one year, although the worker should not be allowed to take holiday whilst absent on sick leave. The Advocate General also states that a worker whose contract is terminated but who has been on sick leave for longer than one year prior to that termination should be entitled to payment in lieu of any untaken holiday that they accrued whilst they were on sick leave.

The Advocate General goes on to suggest that if a worker is on long term sick for more than an entire holiday year then the holiday accrued whilst off sick can roll over to the next holiday year so that they can take it on their return. This position would seem somewhat illogical in that a worker who remains at work whilst accruing holiday is unable to roll over their statutory holiday, putting those off on long term sick leave at an advantage.

The judgment from the ECJ is awaited with interest, but employers should be forewarned that if the opinion of the Advocate General is followed the law in relation to this issue will change and workers on long term sick leave, not currently entitled to accumulate holiday, will acquire new rights in relation to this matter.

Coleman v Attridge Law

This is another opinion of the Advocate General.

If the ECJ agree with the Advocate General, this case will become authority for the proposition that a worker can be discriminated against on the grounds of another person’s disability.

Ms Coleman alleges that she was discriminated against due to the fact that she had a disabled son who required specialist care. She requested flexible working in order to care for her son and this request was refused. Ms Coleman then took voluntary redundancy and claimed constructive unfair dismissal and disability discrimination.

The opinion of the Advocate General is that Ms Coleman could have been discriminated against and that under the Equal Treatment Framework Directive (2000/78/EC) it was possible for someone to be discriminated against on the grounds of someone else’s disability.

As explained above the opinion of the Advocate General is not binding on the ECJ, but if the ECJ follows the Advocate General then this will mean that much of the relevant part of the Disability Discrimination Act 1995 is presently incompatible with EU law and will have to be interpreted in such a way to allow for ‘associative discrimination’ claims.

The Advocate General was also of the opinion that the same wide reading of the discrimination laws would also apply to discrimination on the grounds of religion and belief, age and sexual orientation. It is already possible to be discriminated against on the grounds of someone else’s race.

If the ECJ follows this opinion then it will considerably widen the scope of anti-discrimination legislation and employers will need to consider not only the characteristics of the worker, but also the characteristics of those close to the worker. In particular employers should be careful to note if workers are acting as carers for others and deal with this situation considerately.

Airbus UK Ltd v Webb

This Court of Appeal case which can be found here is authority for the proposition that the misconduct which leads to an expired disciplinary warning can be taken into account when employers are making dismissal decisions even if the warning itself cannot.

Mr Webb worked as an aircraft fitter and received a final written warning in July 2004; the final written warning remained on Mr Webb’s record for 12 months.

Shortly after the warning expired Mr Webb and a number of his colleagues were caught watching television whilst they were supposed to be working. Airbus dismissed Mr Webb, as they considered his actions to constitute gross misconduct. The other employees all had clean disciplinary records and were therefore only issued with a written warning.

Mr Webb brought an unfair dismissal claim and contended that Airbus should not have relied on the expired warning when deciding whether to dismiss him.

The Employment Tribunal and the EAT agreed with Mr Webb and both held that the warning should be disregarded for the purpose of deciding whether he should have been dismissed. Both relied on a Court of Sessions case called Diosynth Ltd v Thomson in which a number of factors were taken into consideration when deciding whether to dismiss the employee and the consideration of the expired warning was the factor that tipped the balance and led the employer to dismiss.

The Court of Appeal in Webb distinguished this case on the basis that in Diosynth the expired warning was crucial, in that if it had not been considered then the employee would not have been dismissed. Whereas in Webb, the act was considered to be one of gross misconduct and therefore it would have been within the range of reasonable responses to dismiss Mr Webb in any event.

The key distinction to be made according to this case is between the misconduct itself and the sanction for the misconduct. The sanction for the earlier misconduct had expired, but the underlying misconduct could be considered by the employer when deciding whether to dismiss. In this case, the option of dismissal was within the range of reasonable responses for all of the employees that were caught watching television, as Airbus considered it to be a gross misconduct offence. 

What can be taken from the case is that employers are still not allowed to use expired warnings as the reason for dismissal, but if the conduct or offence is so serious that dismissal is a reasonable response to that conduct, then this case shows that employers are entitled to consider the previous incidence of misconduct when considering whether or not to be lenient. This means that previous misconduct can be taken into account when making a decision as to whether the sanction of dismissal is appropriate.

The Court of Appeal stressed that this case was not a green light for employers to rely on expired warnings in all decisions regarding whether to dismiss. The conduct that gave rise to the expired warning can only be considered if there is already a valid reason to dismiss on this particular occasion in any event. Expired warnings and the conduct which lead to them cannot be used to tip the balance. 

As a result, employers should remain cautious when relying on expired warnings and should only use them when balancing up any other mitigation of the sanction that they have decided on, not as a reason to dismiss in itself.

Back to Employment Law E-Bulletin Feb 08

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Feb 2008