Employment Law Case Update - July 2015
Burnetts' employment law & HR team provides a summary of the latest employment law cases from including cases involving sick pay and religious dress.
Another Case on Sick Pay
Although many might panic at the thought of yet more case law in this area, the recent decision of the Employment Appeal Tribunal (“the EAT”) in Plumb v Duncan Print Group Limited was fairly positive for employers.
Mr Plumb had an accident at work in 2010. He never returned to work after that accident. Instead, he was signed off sick until his employer eventually started an ill health, capability dismissal procedure in January 2014.
During that capability process, Mr Plumb asked to be paid in lieu of his full entitlement to holiday for the years in which he had been absent (2010, 2011, 2012 and 2013). His employer agreed to pay in lieu of the leave that Mr Plumb had accrued in 2013, the most recent holiday year, but refused to go back any further than that.
After he had been dismissed, Mr Plumb sued for, amongst other things, payment in lieu of the accrued but untaken holiday.
The Employment Tribunal dismissed the claim on the ground that Mr Plumb had been unable to show that his medical condition was that the reason he did not take his leave.
Mr Plumb appealed and the EAT overturned the decision. Looking back at other case law on what the employee does and does not have to do during his or her sickness absence, the EAT found that there is no requirement on the sick employee to take annual leave during the leave year in which it is accrued nor to show that he or she was unable by reason of sickness to take the leave. The EAT stressed that the employee accrues the leave, and is entitled to be paid for it on termination, whether he or she was unable or just unwilling to take it during his or her sickness absence.
Whilst that might seem like bad news, the EAT went on to say that leave cannot be accrued and carried forward indefinitely and that it may be limited to 18 months' carry forward from the end of the leave year in which it was accrued. With that in mind, the EAT held that Mr Plumb had been entitled to payment in lieu of annual leave for 2012 and 2013 but not for 2010 and 2011.
In summary, employees on long term absence accrue leave whether they are in contact with the employer about it or not but, on termination, they can only ask to be paid in lieu of leave that has accrued in the 18 months prior to their departure. Based on current case law, the employee can no longer look back any further than that.
Restricting Religious Dress
Having covered what you can and cannot say at work in last month's case law update, the case of Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery is another case on the thorny issue of the balance between dress code and religious beliefs.
Ms Begum applied for a post as a nursery assistant with Barley Lane Nursery. Ms Begum is a practising muslim and felt obliged by her religion to wear a jilbab - a garment that covered her from her neck to her ankles.
Following a half day trial, Ms Begum was offered the job but she was asked if she could wear a shorter garment for work, as the Nursery felt that Ms Begum’s jilbab was so long that it could be a trip hazard. On that particular day, Ms Begum had been wearing a jilbab that reached all the way down to the floor. Ms Begum told the Nursery staff that she would consult with her parents about wearing a shorter garment but then rejected the job offer, complaining of discrimination.
After consulting the parties on what exactly had been said in relation to the garment that Ms Begum was wearing, the Employment Tribunal came to the conclusion that there was no discrimination.
The Tribunal found that the requirement for Ms Begum to wear a garment of a particular length was a provision, criterion or practice that could place her at a disadvantage because of her religion. However, the Tribunal felt that the Nursery had a legitimate aim of protecting the health and safety of both Ms Begum and the children in her/their care. The Tribunal was persuaded that Ms Begum had not been told that she could not wear a full length jilbab to work. The Tribunal found that the request had been more limited to requiring her to wear one that was shorter than the one that she had worn to the interview.
It is important that employers keep in mind that a policy that prevents the wearing of a jilbab, or other garments felt necessary to comply with religious beliefs, will most likely be considered discriminatory. In order to be able to enforce such restrictions without infringing upon religious freedoms, employers must be able to show that they have a legitimate reason for the dress code being enforced and that there are no less stringent and/or less discriminatory measures that the employer can take which would achieve that aim whilst affording better protection of the employee’s beliefs.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.