Employment eBulletin, August 2009

DMH Stallard Employment eBulletin
June 2009

In this issue:

•	Working Time Regulations: the House of Lords has held that workers are entitled to paid statutory sick leave even if they are on long-term sickness absence, and they can potentially claim for unpaid holiday pay for previous years
•	Religion and Belief Regulations: An ET Judge rules that a belief in climate change could amount to a philosophical belief
•	Redundancy and Age Discrimination: the Court of Appeal rules that a length of service criterion in redundancy matrix is lawful
•	Disability Discrimination: the High Court rejects an employer's claim for damages for fraudulent or negligent misrepresentation against a Managing Director who failed to disclose a history of depression in her pre-employment medical questionnaire
•	The Working Time Directive: 48 Hour Opt-Out to remain
•	Age Discrimination Regulations: Government to review default retirement age in 2010

Welcome to the August edition of the DMH Stallard Employment eBulletin.

Since we last wrote in April, the House of Lords has given its long awaited decision in the Stringer litigation and there have been further developments in respect of the future of the UK's Working Time opt-out. Our eBulletin also covers an interesting case that highlights the potential scope of the Religion and Belief Regulations as well as further case examples highlighting the implications of using LIFO as a redundancy selection criteria and requesting pre-employment medical information. Finally we cover the Government's recent announcement that the review of the default retirement age is being brought forward to next year.

As always, we would like to remind you about DMH Stallard's highly praised Employment Workshops and Seminars which are free to attend. Our latest event covers Ageism in the Workplace and you can find full details on our website.

If you would like to discuss any of the issues raised in this eBulletin then please do contact me.

Christine Gannon
Associate

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Working Time Regulations: the House of Lords has held that workers are entitled to paid statutory sick leave even if they are on long-term sickness absence, and they can potentially claim for unpaid holiday pay for previous years

In a long anticipated decision, the House of Lords has held that workers continue to accrue and are entitled to take statutory annual leave while off long-term sick. They are entitled to be paid in respect of such leave, even where they have exhausted their statutory and contractual sick pay entitlements.

Further, workers on long-term sick leave can bring claims for statutory holiday pay under the unlawful deductions from wages provisions of the Employment Rights Act 1996 (ERA), which means that they can, potentially, claim for previous years unpaid holiday entitlement (HM Revenue & Customs v Stringer and others [2009] UKHL 31).

Religion and Belief Regulations: An ET Judge rules that a belief in climate change could amount to a philosophical belief

An employment judge has ruled at a pre-hearing review that an executive could have a “philosophical belief in climate change” under the Religion and Belief Regulations (Nicholson v Grainger Plc, ET unreported). Accordingly, his belief was legally recognised as having protection from discrimination.

Redundancy and Age Discrimination: the Court of Appeal rules that a length of service criterion in redundancy matrix is lawful

The Court of Appeal has held that using length of service in a redundancy selection matrix was lawful in the case of Rolls-Royce Plc v Unite the Union [2009] EWCA Civ 387.

Disability Discrimination: the High Court rejects an employer's claim for damages for fraudulent or negligent misrepresentation against a Managing Director who failed to disclose a history of depression in her pre-employment medical questionnaire

In the case of Cheltenham Borough Council v Laird [2009] EWHC 1253 HC, the High Court has rejected the Council’s claim for damages for fraudulent or negligent misrepresentation against a Managing Director who failed to disclose a history of depression in her pre-employment medical questionnaire.

The Working Time Directive: 48 Hour Opt-Out to remain
It appears that the opt-out from the 48 hour working week will remain in force for the forseaable future, as the latest round of talks between the European Council of Ministers, European Commission and European Parliament has failed. The main stumbling blocks to an agreement being the opt-out and the treatment of on-call time.

Age Discrimination Regulations: Government to review default retirement age in 2010

The Government has announced in its strategy document Building a society for all ages that its review of the default retirement age (currently 65) will be brought forward by a year to 2010.