Vince Cable outlines government's employment law reform plans

Business Secretary Vince Cable has outlined the coalition Government’s plans for employment law reform.

The proposals include:

• Requiring complaints to be submitted to Acas for pre-claim conciliation before an Employment Tribunal claim can be issued.
• Introducing “protected conversations” to allow employers to raise workplace issues “in an open way, free from the worry it will be used as evidence in…tribunal”.
• Simplifying compromise agreements
• Creating a “rapid resolution scheme” as a quicker and cheaper alternative to the Employment Tribunal for “more straightforward matters” such as holiday pay disputes.
• A “root and branch” review of tribunal rules to be led by Mr Justice Underhill
• Different fees for different types of tribunal claims, possibly with a higher fee for claims worth more than £30,000. A consultation on fees will be published shortly
• “Closing the loophole” in whistleblowing law whereby a complaint about a breach of the employment contract can count as qualifying disclosure.
• Doubling the unfair dismissal qualifying period to two years.
• Improving CRB checks by making them instantly accessible online
• Simplifying the 17 pieces of National Minimum Wage legislation into one set of regulations.
• Reviewing the Agency Workers Regulations 2010 in 18 months’ time
• Extending the right to request flexible working to everyone
• A more modern system of parental leave that reflects the greater involvement of fathers in childcare.

Comment:

It is not yet clear how these proposals will be introduced in practice and it’s difficult to assess the impact they may have until further details are known. What is clear is that the government is keen to be seen to be reducing the burden on both the Employment Tribunals and employers.

We will keep you updated about the practical implications of these proposals as more information becomes available.

---

Belief about wearing poppy was not a philosophical belief under discrimination law.

In Lisk v Shield Guardian Co Ltd the Employment Tribunal held that a belief that people should pay their respects by wearing a poppy from All Souls’ Day on 2nd November to Remembrance Sunday is not a philosophical belief capable of protection under the Equality Act.

In Grainger plc and others v Nicholson the EAT gave guidance as to what amounts to a philosophical belief for the purposes of discrimination legislation. It stated that the belief must:

• Be genuinely held;
• Be a belief, not an opinion or viewpoint based on the present state of information available;
• Be a belief as to a weighty and substantial aspect of human behaviour;
• Attain a certain level of cogency, seriousness, cohesion and importance;
• Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In Lisk v Shield Guardian Co Ltd Mr Lisk, an ex-serviceman, alleged that his employer refused to allow him to wear a poppy at work and submitted a claim for religion or belief discrimination to an Employment Tribunal.

At a preliminary hearing, an Employment Judge considered whether Mr Lisk’s purported belief that “we should all pay our respects to those who have given their lives for us by wearing a poppy from All Soul’s Day on 2nd November to Remembrance Day” amounted to a philosophical belief protected by the Equality Act 2010.

The Employment Judge rejected Mr Lisk’s claims, holding that his belief was not protected under the Equality Act. The judge held:

• It is not simply a question of whether somebody’s choice to wear a poppy is serious and should be respected, but of whether there is a philosophical belief underpinning that choice.
• However admirable, the belief that one should wear a poppy to show respect seems to lack the characteristics of cogency, cohesion and importance required by the Nicholson case;
• The belief that we should express support for the sacrifice of others cannot be fairly described as being a belief as to a weighty aspect of human life and behaviour. It is too narrow to be characterised as a philosophical belief.

Comment:

Recent case law in which anti-fox hunting beliefs and a belief in the higher purpose of public service broadcasting were found to be capable of protection under the Equality Act, had suggested that the definition of philosophical belief was being widely interpreted, post Nicholson.

However, the Employment Judge in this case felt that Mr Lisk’s purported belief fell the wrong side of the line. At this stage it is therefore very difficult for employers and employees alike to know which beliefs are covered by the legislation and which are not.

---

Sick workers can carry over all 5.6 weeks' statutory holiday to next leave year.

An Employment Judge has held that words can be read into regulation 13(9) of the European Working Time Regulations 1998 (WTR) to enable workers to carry over their statutory annual leave entitlement to the next year where they had been unwilling or unable to take it because of sickness absence.

Article 7 of the European Working Time Directive (the Directive) provides that member states must “ensure that every worker is entitled to paid annual leave of at least four weeks”. This is implemented in Great Britain by regulations 13 and 16 of the WTR, which give workers the right to 5.6 weeks’ paid annual leave including bank and public holidays. Four weeks of that leave (the minimum required by the Directive) can, according to regulation 13(9) of the WTR, only be taken in the leave year to which it relates.

In Stringer and others v HM Revenue & Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund and Pereda v Madrid Movillad SA the ECJ ruled on the relationship between statutory annual leave and long-term sickness absence. In the ECJ’s view, the Directive requires member states to ensure that workers who are unable or unwilling to take statutory holiday during sick leave can take it following their return to work, even if this means carrying the holiday entitlement over to another leave year.

In Adams and another v Harwich International Port Limited Mr Adams was a traffic controller, and Mr Hunwick a port controller, for Harwich International Port Ltd. Mr Adams was off sick from July 2009 to March 2010 (an absence spanning both the 2009 and 2010 leave years), and Mr Hunwick from January 2010 to June 2010. Neither of them took any statutory holiday during their sickness absence.

In November 2010, the workers’ union representatives notifying Harwich that the workers wished to take statutory holiday which they had accrued during their sick leave. The representatives asked Harwich whether, if it could not accommodate the holiday dates specified, it would agree to the workers’ carrying over their unused holiday entitlement into 2011. Harwich rejected the holiday requests believing them to be “not correct”. The workers raised formal grievances and, before these had been processed by Harwich, brought tribunal proceedings under regulation 30 of the WTR, arguing that Harwich had refused to allow them to exercise their statutory holiday rights.

The Employment Judge held that the claims were well founded. The Judge held that the claimants had the right to carry forward “to the immediately following year” any accrued untaken leave which they were unable to take because of sickness, or which the employer had otherwise prevented them from taking due to business need.

The Judge concluded that Harwich had prevented the claimants from exercising their holiday rights meaning that the workers’ claims under regulation 30 of the WTR were well founded.

Comment:

It appears clear from this and other English case law that statutory holiday can be carried over where EU law requires it. Whether those on long term sick leave should be able to carry over their statutory holiday from year to year indefinitely is still open to question.

The Attorney General has taken the view that they cannot and the judge in this case agreed but it remains to be seen whether the European Court of Justice agrees with this point of view.

This case is a reminder that employers with employees on long term sick leave should take care to ensure that they are fully aware of matters such as accrual of holiday and entitlement to holiday pay to avoid exposure to a potentially costly Employment Tribunal claim. Employers should also be sure that they have up to date procedures in place to deal with sickness absence and how it interrelates to holiday entitlement.

If you would like any assistance in connection with anything discussed in this article please contact a member of the Employment Team.