Employment – Case Law Update September 2009

Our Employment team bring you their regular update of recent decisions in employment law cases…

When might an employee be entitled to legal representation at an internal dismissal hearing?

Following on from a recent High Court decision we considered in our last update, the Court of Appeal has now, for the first time, held that in certain circumstances an employee has a right to legal representation in internal disciplinary proceedings.

The Court of Appeal has held that a doctor, who faced disciplinary action for allegedly placing a stethoscope inside a female patient’s underwear without her consent, was entitled to legal representation at his subsequent disciplinary hearing.

The court commented that while the right to legal representation would not necessarily apply in the course of ordinary disciplinary proceedings “where all at stake was the loss of a specific job,” it may apply where “the effect of the proceedings could be far more serious and deprive that employee the right to practice their profession”.

We have experience in advising clients facing similarly serious allegations that warranted legal representation in internal disciplinary proceedings. So, if you are an employer looking for advice on running disciplinary and grievance hearings, or an employee who is due to attend a hearing, our team will be happy to assist.

Can compulsory retirement be discriminatory?

The first challenge over compulsory retirement has reached the Court of Appeal.

A solicitor is claiming that he was discriminated against under the Employment Equality (Age) Regulations 2006 on grounds of age when his firm asked him to leave at the normal retirement age in line with his partnership agreement.

Although there is an exemption to the Age Regulations which does allow for the compulsory retirement of employees aged 65 or over (provided the employer follows a specific procedure), this does not apply to partners. This means that forcing a partner to retire when they reach a certain age will be unlawful unless it can be objectively justified. The claimant in this case argues that the firm could not justify the retirement and therefore acted discriminately.

The Equality and Human Rights Commission are supporting the solicitor’s claims and argue that a national “default” retirement age of 65 is unfair and discriminatory.

The ECHR are also intervening in a separate legal challenge at the High Court over compulsory retirement in a case brought against the Government by the charities Age Concern and Help the Aged, where the Court will decide if the UK’s default retirement age can be justified under EU law.

Given the importance of the case, the Appeal Court judges will reserve their decision in the case until a later date.

If you have any questions related to compulsory retirement please contact our experienced Employment Law team.

What holiday entitlement do employees have while off sick?

Earlier this year the European Court of Justice ruled that employees can accrue holiday entitlement while off work sick.

Consequently employees are entitled to holiday pay while on sick leave and an employee who resigns or is made redundant while off sick will be entitled to payment in lieu of holidays. This must be in addition to any redundancy payment.

Furthermore the House of Lords has recently ruled that an employee will now be entitled to bring an unlawful deduction of wages claim under the Employment Rights Act 1996 (rather than have to claim under the Working Time Regulations 1998) for payment in lieu of holiday on termination of employment. This could therefore be a claim that potentially goes back years provided that the claim is brought within three months of the last in a series of deductions (as opposed to three months from the date of each deduction, as stipulated by the Working Time Regulations). For these purposes a “deduction” is a failure to pay the employee for statutory holiday.

It is still unclear is whether untaken leave can carry into the next year in the case of a long term sickness, although it is possible that if the employee is incapable of taking the holiday, the employer may have to allow him to carry forward the leave to the next leave year.

It is important to note that the decision relates only to statutory annual leave and not to contractual arrangements.

Employers may therefore need to review their annual leave policies and procedures to try to ensure that employees take paid holiday during the relevant leave year, or find ways to make it easier for staff to return to work or move quicker than in the past to dismiss staff on long term sick leave. Whatever approach employers take they need tread carefully to avoid the possibility of a costly tribunal claim.