Employment Bite Size March 2010

Your monthly guide to all the recent changes in the world of employment law   

Legislation

Sick notes to be replaced by ‘fit notes’ in April 2010
New legislation which will replace sick notes with ‘fit notes’, is expected to come into force on 6 April 2010. The Government has recently announced its response to the consultation.

It is envisaged that the fit note will detail changes which could be made to an employee's work environment or job role to help facilitate a return to work. A doctor will only be able to certify that an employee "may be fit for work", as ultimately it will be the employer’s decision, not the doctor’s, whether an employee is fit to work or not and what, if any, changes should be made to an employee’s role or environment. Employers in this situation are strongly advised to carry out a risk assessment prior to the employee’s return to work.

For more information, please click here 

Whistleblowing claims – proposed change in procedure
The Government has announced that tribunals will be permitted to pass whistleblowing claims that are received on or after 6 April 2010 to a prescribed regulator. The Government’s reasoning is that the regulator has the relevant knowledge and expertise to take any action on the underlying protected disclosure, whereas the tribunal does not.

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010, which are to come into force on 6 April 2010, will permit tribunals to pass on any protected disclosure allegations to a regulator where the claimant has expressly consented to the same. The ET1 form will be amended to give the claimant an opportunity to indicate their consent at the start of the proceedings.

For more information, please visit:

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Cases

Carrying over leave lost due to illness
The first UK case has come to light since the issue of carrying leave entitlement over to the next annual leave year if prevented from taking it by illness was raised by two ECJ decisions last year.  The case of Pereda suggested that leave should be rescheduled where workers have fallen sick, even if this means carrying leave into the next leave year, and Stringer gave authority for the proposition that holiday pay accrues whilst on sick leave and that leave should be carried forward in some cases. 
 

Mr Shah brought a claim against his employers for four weeks’ holiday which he had booked prior to breaking his ankle.  His injury kept him off work for three months, including the time he was due to be on leave.  His employers refused his request to claim back the leave he had lost.  The tribunal ruled that Mr Shah was entitled to take the leave he could not take whilst he was injured in the following leave year. Whilst this UK case was heard in the Employment Tribunal and is therefore not binding, it does suggest that the tribunals are choosing to follow EU law despite UK legislation providing a grey area on the issue. 
 

Shah v First West Yorkshire   

Varying terms and conditions of employment in company handbook
Providing the term is implemented properly, a broad contractual right to alter the terms and conditions of employment in line with business needs can enable an employer to make unilateral changes without employee consent, even if the altered terms are contained within a company handbook.

In this claim, Asda sought to bring its entire staff under one pay and work structure.  The company handbook contained the terms which required alteration and a statement that Asda reserved the right to alter and amend in line with business needs. Asda claimed that it was therefore able to rely on this statement to amend the company handbook without obtaining employee consent. The EAT agreed; confirming the crucial point that as Asda had incorporated the handbook into employees’ employment contracts, it could be relied upon. In this instance, Asda did actually consult extensively with its staff and attempted to ensure that no staff member suffered a wage reduction.

A word of caution to employers is that variation clauses can’t simply be added into contracts or varied for that matter without going through a proper process.  In addition the employees in this case did not plead at tribunal that there had been a breach of trust and confidence, had they done so the outcome may have been different.  
 

Bateman v Asda Stores Limited