illnesses such as cancer, HIV and multiple sclerosis will now be deemed to be disabilities from the point of diagnosis, thus removing any doubt as to whether they fall within the scope of the DDA. In addition, the requirement for mental impairments to be “clinically well recognised” in order to qualify as a disability, will be removed. This loosening of the requirement is likely to make it easier for employees suffering from generic symptoms of “stress” and “depression” to qualify for protection and employers will need to tread carefully.

The Opt Out Survives…For now

The Government has managed to put off the proposed amendment to the Working Time Directive which would have had the effect of scrapping the right to opt out of the 48 hour maximum working week. This is a temporary reprieve as it is expected that the issue will be raised again, although not until 2006 at the earliest.

TALES FROM THE TRIBUNAL

Whistleblower awarded £477,600

An Employment Tribunal sitting in Leeds has awarded a female prison officer £477,600 in compensation after it upheld her claims of constructive unfair dismissal and victimisation on the grounds that she had made a “protected disclosure”.

A person makes a qualifying disclosure if, in their reasonable belief, the disclosure shows or tends to show that one of the following six specified categories of wrongdoing is being or is likely to be committed:

• that a criminal offence has been committed, is being committed or is likely to be committed;
• that a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject;
• that a miscarriage of justice has occurred, is occurring or is likely to occur;
• that the health or safety of any individual has been is being or is likely to be endangered;
• that the environment has been , is being or is likely to be damaged; or
• that information tending to show any matter falling within any one of the preceding criteria has been , is being or is likely to be deliberately concealed.

In order for the disclosure to be “protected” it must be made in good faith. If, having made a protected disclosure, a worker is treated less favourably, or dismissed, he or she may present a claim irrespective of length of service. Like discrimination, whistle blowing is another area of employment law which carries no cap on the maximum compensation that can be awarded. Unlike unfair dismissal, awards made to whistle blowers can include compensation for injury to feelings as well as for loss of earnings.

The compensation in this case was made up of a relatively modest basic award of £3,915.00, an award of £3,000 for injury to feelings and a compensatory award of £470,687.90 for past and future loss of earnings which included the tax payable on the award. The compensatory award reflects in part the tribunal’s findings that the employee was the highest earner in her household, had a strong family-instilled work ethic and would have remained with the Prison Service until retiring at the age of 60. In addition the solicitors acting for the employee have issued a press release stating that the Prison Service will also be paying for her legal costs of the action amounting to £90,000.

The size of the award is a stark warning to employers of the consequences of failing to properly manage protected disclosures at work. To keep disclosures in the workplace and ensure that managers are familiar with what amounts to a disclosure and what procedural steps to take, employers are well-advised to put in place a whistle blowing policy.

 

Holiday Pay for Long Term Sick rumbles on……..

In a welcome result for employers, the Court of Appeal has issued a judgment which overturns two cases on holiday pay which previously spelt bad news for businesses.

The first issue relates to the payment of holiday pay to workers absent on long term sick for a year or more. The court held that the purpose of “leave” is to provide a respite from work which ties in with the objective of the Working Time Regulations to ensure minimum health and safety standards in relation to working time. Clearly an employee who has been absent for over a year requires no “respite from work” and consequently, a payment for annual leave in these circumstances was described by the court as a “windfall” for the employee. However employers should be aware that the ruling strictly applies only to employees who have been absent for an entire year. It should be assumed, pending further guidance that an employee who has been absent for part of a leave year as opposed to all of it, will accrue their holiday as usual, given that they have worked during that year.

The second issue relates to whether that arrears of holiday pay constituted an unlawful deduction from wages. Under the provisions for claiming back unlawful deductions, the time limit for bringing a claim where there is alleged to have been a “series” of deductions is 3 months from the last deduction. This enabled employees to get round the provisions of the Working Time Regulations 1998 which state that claims must be brought within 3 months of the first breach of the right to annual leave. In one 2004 case this meant that 2 self employed consultants who established employment rights as “workers” were awarded holiday pay dating back to the inception of the Working Time Regulations which amounted to a payout of approximately £50,000.

The court has now decided that claims for holiday pay can only be made under the Working Time Regulations 1998 meaning that claims must be brought within 3 months of the alleged breach. This may not be the final word as it is likely that this case will be appealed to the House of Lords at which point it could all change again.

Compromise Agreements – A New Trap for the Unwary

Another recent judgment from the Court of Appeal serves as a warning to employers against using old compromise agreements as a precedent for a new situation without seeking legal advice. It has always been a requirement under the various statutes that govern compromise agreements that they must relate to the “particular proceedings”. The court has stated that this means the parties to the agreement must expressly identify the particular claims or potential claims the employee may have which will in all cases depend on the individual circumstances. In particular it will no longer be satisfactory to simply make reference to “all statutory claims”. The effect of getting it wrong? The agreement is likely to be non binding on the employee enabling them to lodge claims in the Court or Tribunal.

Fiona Holdsworth Employment Lawyer

Employment Tribunal Claims down by 25% in the year ending 31st March 2005

The Employment Tribunal Service has announced that only 86,181 claims were registered in this year in contrast to 115,042 in the 2003/2004 year. Some commentators are attributing the down turn in claims to the effect of the new statutory disciplinary and grievance procedures, stating that employees can’t be bothered with the hassle of going through the procedures in order to bring a claim. Another and possibly more plausible explanation in our view is that claims have merely been delayed as a consequence of the extension of time limits available in certain circumstances. The fact that the new provisions only came into force last October may also support this theory. The decrease can also be attributed to the fact that there were fewer “group actions” than the previous year and consequently, the Government can’t yet claim that the Statutory Procedures have had their intended effect of promoting internal dispute resolution and reducing tribunal claims. In fact we have found that due to the (over?)technicality of the rules more employers and employees are focussing on infringements of the rules, particularly time limits, to obtain technical strike outs rather than using the procedures to deal with the actual issues.

For further details please contact Sally Bird, Head of Employment on 0161 832 3434 or by e-mail to sallybird@kuits.com or Fiona Holdsworth, Employment Lawyer, on 0161 832 3434 or by e-mail at fionaholdsworth@kuits.com