Sickness and Incapacity

On 5 December 2012, the Chancellor, George Osborne, delivered his Autumn Statement. The statement included a number of announcements of interest to employment lawyers.

Advice to an employee client who is facing a capability procedure at work due to poor performance. The advice outlines the typical steps in a capability procedure and the requirements of the Acas Code of Practice on disciplinary and grievance procedures. 

The Advocate General has delivered her opinion in KHS AG v Schulte C-214/10, a case concerning the relationship between holiday rights under the Working Time Directive (2003/88/EC) and long-term sick leave.

According to HM Revenue & Customs, the Department for Work and Pensions has decided to take steps to amend the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 to provide that agency workers with contracts of less than three months are not excluded from the right to statutory sick pay. There is currently no indication when the change will take place but, apparently, preparatory work will take place "during the coming months". See HMRC, Entitlement to Statutory Sick Pay, October 2007.

In McAdie v Royal Bank of Scotland [2007] EWCA Civ 806 the Court of Appeal endorsed the EAT's approach in finding that an employer could fairly dismiss an employee for ill-health capability despite the fact that the employee's stress-related illness was attributed to the conduct of the employer. Although the cause of the employee's incapability is a relevant factor for the tribunal to consider when determining whether or not a dismissal is fair, the key issue is whether the employer acted reasonably in all the circumstances, which include the fact that the employer was responsible for the ill-health. In this case, the employee made it absolutely clear that she would not consider returning to work (and medical evidence supported this). In reality, there was no alternative to dismissal. However, the Court of Appeal agreed with the EAT that where the employer is responsible for the employee's ill-health, it should normally make more effort to find alternative employment for the employee or put up with a longer period of sickness absence than would otherwise be reasonable.

The European Court of Justice has held that the time for which workers on long-term sick leave can carry over untaken statutory annual leave can be limited.

An employment tribunal has held that, when a period of sickness absence coincided with a pre-arranged holiday, an employee should be allowed to take that holiday in the following leave year.

The Social Security Benefits Up-rating Order 2008 (SI 2008/632) was published on 6 March 2008. From 6 April 2008: Statutory sick pay will increase from £72.55 to £75.40. Statutory maternity, paternity and adoption pay will each increase from £112.75 to £117.18. These increases were previously reported in Legal update, Increase in statutory sick pay and statutory maternity, paternity and adoption pay from April 2008. For further information on statutory payments, see Checklist, Current rates and limits. See Social Security Benefits Up-rating Order 2008.

An update on the proposed increases to statutory sick pay and maternity, paternity and adoption pay.

An employee is absent from work due to sickness and she is receiving SSP. The employer will be dismissing her shortly. Her contractual notice period is more than her statutory notice period, therefore, the employer does not have to pay her during her notice period. However, do they have to pay her SSP during her notice period?

This Ask the team focuses on the implications of the recent high-profile case of Pereda for the relationship between statutory holiday rights and sickness.

The compensation limits on tribunal awards have been increased and new rates of maternity, paternity and adoption pay have been announced.

In Beattie v Age Concern, the EAT held that an hourly-paid employee's sick pay should be calculated on the basis of the hours actually worked, rather than on the minimum number of hours the employer guaranteed to provide each week. Neither the employer's sick pay policy nor the contractual documentation specified how sick pay should be calcuated.Applying the principles of construction set out by the House of Lords in Investors Compensation Scheme Limited v West Bromwich Building Society, the EAT held that the parties would not have contemplated "pay" relating to the minimum guarantee, rather than to the hours actually worked. This was particularly relevant in relation to the operation of a sick pay scheme which was designed to support an employee, by the continuation of payment on the basis of which they had contracted liabilities and on which their economic life depended.

If an employee is failing to manage a disability which is, to an extent, within their gift (e.g. a diabetic employee who fails to monitor their condition adequately, thereby frequently fainting whilst at work), can any action be taken against that employee if they are warned to monitor their condition more closely but fail to do so? If so, would any action be on the grounds of misconduct or capability? I look forward to hearing from you.

Where an employee is entitled to carry forward untaken annual leave into the next holiday year as a result of sickness, what action can an employee take when the employer refuses to acknowledge that right? It would seem that an unlawful deduction/holiday pay claim would not be available where employment is continuing. Similarly, as the employer will not authorise any holiday over and above her "standard" entitlement it will not be possible for her to claim that she took holiday and was not paid for it. Would it be possible for her to apply for a declaration as to her accrued holiday entitlement?

An employee is signed off sick for a 2 week period. A bank holiday falls within those 2 weeks. Is the employee entitled to take that day's holiday at some other point because he was sick over the bank holiday? Or, should the employee be paid full pay as he would have been had he been 'fit' for the holiday. The employee's holiday entitlement is 24 days plus bank holidays.

My query relates to the ongoing developments about sick leave and holiday, most recently reported in Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others, Case C-78/11. If an employer who operates a SSP system has employees who retrospectively ask for sick leave to be treated as holiday so that they get paid their normal remuneration, do you think this will fall foul of the latest trends on sick leave and holiday?

If an employer dismisses an employee whilst they are entitled to SSP, am I right in understanding they are able to do so provided the reason is not specifically to avoid making those payments (even if that is the effect)? Also, if the employer dismisses for capability during the SSP period relying on ill health, is there anything that would result in that being a deemed termination to avoid making SSP payments?  

If an employee needs to take time off work for a medical appointment, can an employer insist on receiving written confirmation of a medical appointment (GP or hospital) and retain a copy of that confirmation on an employee's file?

According to the DWP guidance a GP does not need to issue a statement to a patient until they have been off work for more than 7 calendar days. Part of our policy on absence management advises that where an employee's sick absence is under review management should consider the option to request a Fit Note for all absences even if less than 7 days, reimbursing the employee if charged. An employee has recently stated that their GP told them it was against the law to do so, but provided one anyway. As the obligation to provide a fit note is not founded in employment law where does an employer stand when requesting a Fit Note for less than a 7 day absence?

Depending on the custom and practice within a sector, the EAT has held that employers have a wide discretion to insist that leave is only taken at certain times (Sumsion v BBC Scotland 2007). For example many employers who have workers who are teachers and manufacturing production operatives, operate shift patterns which designates part of their non-working time as holiday. My client employer has a specific section regarding holiday entitlement in the employees' contracts, which states that two weeks of annual leave must be taken during a two-week factory shutdown in August each year. One of my client's employees is, however, on long term sick leave and will continue to be on sick leave during the two-week shutdown period. I understand from PLC that, if an employee is sick while on holiday, such days may be treated as sick days rather than annual leave if the worker has complied with notification and evidence requirements for SSP (which in this case, he has). I am aware that the ECJ (in Pereda v Madrid Movilidad 2009) has also confirmed that where an employee is sick during a period of annual leave he will be entitled to take an equivalent period of annual leave after he is fit to return to work (although this case applied to public sector workers, I have read that both private and public sectors should follow the guidance of the Court). My question is do the guidelines in Pereda apply in circumstances where the employee is obliged by the terms of his co

In England, is it possible to make redundant an employee who has been on long-term sick leave and whose salary is now covered by our permanent health insurance? The person is still an employee but is paid under an insurance policy intended to cover employees who are on long-term sick leave. We (as a company) continue to pay for the cost of his benefits (eg company car, internet access at home). The employee went on sick leave with chronic fatigue syndrome and he has not been able to resume full-time work to date. He is treated as an employee with a disability. There is medical evidence to support the condition. Due to reduction in workload we need to reduce the team. His role, using an objective selection matrix, could be subject to redundancy. We have a Union which has approved the selection criteria. If he scores the same as another employee, would it be fair to select him? Would be grateful for your advice and guidance in this area.

In Mathews v DHL Air Ltd the EAT upheld a tribunal's finding that the dismissal of a pilot on capability grounds was not unfair in circumstances where his Civil Aviation Authority licence had been suspended and subsequently restored, but where the employer's occupational health physician regarded him as "operationally unfit" to fly without first undertaking a period of non-flying duties, which the pilot had refused.

Council worker dismissed to avoid pension payout wins age claim (Wooster v London Borough of Tower Hamlets). Age discrimination and share schemes run by a foreign parent company (Hung v (1) Kellog Brown & Root (UK) Limited (2) Halliburton Company). Identifying a disability (Ministry of Defence v Hay). Tribunal does not have jurisdiction to decide if an employee is entitled to SSP (Sarti (Sauchiehall St) Ltd v Polito). Francovich claim was statute barred (Spencer v Secretary of State for Work and Pensions; Moore v (1) Secretary of State for Transport (2) Motor Insurers' Bureau).

A legal update on the EAT's decision in Wood v Mitchell SA Ltd UKEAT/0018/10.

The Compensation Act 2006, as originally enacted. See also explanatory notes.

The Employment Appeal Tribunal has held that an employee’s failure to process his complaint through his employer’s grievance procedure is not relevant to whether he can claim constructive dismissal in relation to that complaint.

In Beattie v Age Concern, the EAT held that an hourly-paid employee's sick pay should be calculated on the basis of the hours actually worked, rather than on the minimum number of hours the employer guaranteed to provide each week. Neither the employer's sick pay policy nor the contractual documentation specified how sick pay should be calculated.Applying the principles of construction set out by the House of Lords in Investors Compensation Scheme Limited v West Bromwich Building Society, the EAT held that the parties would not have contemplated "pay" relating to the minimum guarantee, rather than to the hours actually worked. This was particularly relevant in relation to the operation of a sick pay scheme which was designed to support an employee, by the continuation of payment on the basis of which they had contracted liabilities and on which their economic life depended.

Where an employee retired on the grounds of ill-health and, after a 10 day gap designed by the employer to avoid accusations of bias, took up a less stressful post with the same employer, the Court of Appeal upheld the tribunal's finding that there was no continuity of employment because it was not the employee's incapacity which had prevented him taking up the new post immediately.

In Corr (Adminstratrix of the Estate of Thomas Corr (deceased) v IBC Vehicles Limited [2008] UKHL 13, the House of Lords upheld the Court of Appeal's decision that an employer was liable for the suicide of a former employee who suffered from severe depression as the direct and foreseeable result of being seriously injured in an accident at work. There was no need to establish that suicide itself was reasonably foreseeable at the time of the accident, as the suicide was a consequence of the severe depression bought on by the accident and could not be regarded as so unusual and unpredictable as to be outside the bounds of what was reasonably foreseeable.

I am acting for an employer who is attempting to address various grievances, disciplinary matters (including a couple of rather angry outbursts by the employee) and potentially a redundancy situation with an employee who has suffered mental health problems in the recent past - depression/stress and who has referred to himself as having a "bi-polar" personality. Whilst the employee says he is currently fit and well, his correspondence is quite bizarre and the tone suggests that there may be ongoing mental health issues. I think it unlikely that he will accept that he may not be well (and I accept that I am not qualified to judge the situation) but the employer wants to behave responsibly in dealing with the relevant issues. We are considering seeking access to medical records/requesting that the employee sees a doctor nominated by the employer with a view to obtaining professional input on the employee's state of mind. His contract provides for this but in the context of "prolonged absence" and the employee is not off sick but is suspended. The concern is that the employee considers that he is fine and there has already been a threat that he considers that he is being discriminated against on the grounds of disability (although he refuses to provide any details). The worry is whether seeking a medical report could be characterised as discriminatory in such circumstances or whether it would be seen by a Tribunal as the conduct of a responsible employer. Any thoughts

In O'Hanlon v Commissioners for HM Revenue & Customs the Court of Appeal held that, when her entitlement to sick pay had been exhausted under HM Revenue & Customs' sick pay policy, the employer's failure to continue to pay Mrs O'Hanlon was neither a failure to make a reasonable adjustment nor disability-related discrimination. The Court of Appeal endorsed the EAT's findings that Mrs O'Hanlon had been substantially disadvantaged and treated less favourably by the sick pay policy but that reasonable adjustments had been made and that the employer's treatment of her had been justified. The implications for sick pay policies will come as a relief to employers. A disabled employee will now find it very difficult to claim full pay during sick leave, once any contractual entitlement to full pay has been exhausted, unless, as in Nottinghamshire County Council v Meikle, the employer has caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain at work.

The term "cyber bullying" has been created to refer to the sending or posting of harmful or cruel text or images using the internet or other digital communication devices. Recently teachers have raised concerns about camera phones being used to take videos of them which are then posted on well known websites, such as YouTube, by anonymous students. They also complain of being undermined by sites such as RateMyTeachers which invite pupils to comment on their professional and personal qualities (see Teachers threaten to sue over "cyber-bullying", Telegraph, , 4 April 2007 and YouTube blamed over teacher cyber bullying, Telegraph, 10 April 2007). Given that most employees now carry mobile phones (which increasingly include a digital camera) employers should consider whether they need to introduce or amend policies to deal specifically with the use of images of colleagues taken at work or work-related events. Arguably images posted on external websites (as opposed to being circulated by e-mail in the workplace) can form part of bullying conduct which has its origins in the workplace (and for which an employer is vicariously liable).For further information see Standard document, Anti bullying and harassment policy.

In Deadman v Bristol City Council [2007] EWCA Civ 822 the Court of Appeal has provided further guidance on the scope of stress at work claims in the context of employment procedures such as disciplinary procedures. In this case the employee's stress arose from the employer's manner of conducting an investigation and informing him of a renewed investigation by leaving a letter on his desk. The Court of Appeal upheld the Council's appeal and overturned the High Court's decision that this conduct of the employer amounted to breaches of the contract of employment which caused the employee's illness. The Court of Appeal held that there was no contractual term to act sensitively and the fact that the employee would suffer psychiatric illness as he did was not reasonably foreseeable.

Run by the Depression Alliance, the theme for Depression Awareness Week 2008 is employment. To coincide with Depression Awareness Week, Acas has published advice on spotting the signs of depression in the workplace and a new guide, "Health, work & wellbeing", to help businesses promote and manage healthy workplaces. The guide pays particular attention to mental health, musculoskeletal disorders and stress. It also provides checklists for the preparation of alcohol and drugs policies. For further information on stress and managing sickness absence, see Practice note, Managing sickness absence and Practice note, Stress in the workplace. See Acas gives advice ahead of Depression Awareness Week; Health, work & wellbeing, Acas.

The Employment Appeal Tribunal (EAT) has held that when deciding whether an employee's illness constitutes a disability under the Disability Discrimination Act 1995, regard can be had to the claimant's condition after the occurrence of the discriminatory act complained of.

The Court of Appeal has considered the meaning of dismissal for the purposes of the Disability Discrimination Act 1995, the time limits for constructive dismissal claims and the obligation to make reasonable adjustments in relation to sick pay.

In one of the first cases under the Disability Discrimination Act 1995, it was decided that chronic fatigue syndrome can amount to a disability under the Act. However, where an employer dismisses an employee for excessive sick leave, but is not aware of the employee’s condition, this is not in breach of the Act.

The Court of Appeal has held that the comparators for deciding whether there has been discrimination under the Disability Discrimination Act 1995 are those persons who are not suffering from a disability and its consequences.

In O'Hanlon v HMRC, the EAT held that an employer would only very rarely be obliged, as a reasonable adjustment under the DDA, to give more sick pay to a disabled person than it would otherwise give to a non-disabled person on sick leave. The purpose of the DDA is to enable disabled persons to play a full part in the world of work, not to "treat them as objects of charity". A disabled employee will therefore find it difficult to claim full pay during sick leave (once any contractual entitlement has been exhausted) unless they can show that the absence was caused by the employer's failure to make reasonable adjustments that would have allowed the employee to stay in work.

In Scottish and Southern Energy plc v Mackay UKEATS/0075/06 the EAT held that a failure to discuss options for alternative work with a disabled employee on long-term sickness absence was not of itself a failure to make reasonable adjustments. In this respect, it preferred the decision in Tarbuck v Sainsbury's Supermarkets over that in Mid Staffordshire NHS Trust v Cambridge. However, it upheld the tribunal's decision that the lack of consultation rendered the dismissal of the employee unfair.

An employer may not be liable for discrimination under the Disability Discrimination Act 1995 (DDA 1995) if he is unaware that an employee is suffering from a disability.

The Employment Appeal Tribunal has held that an employer would only very rarely be obliged, as a reasonable adjustment under the Disability Discrimination Act 1995, to give more sick pay to a disabled person than it would otherwise give to a non-disabled person on sick leave.

In Hazelhurst v Cross Country Trains Ltd an employment tribunal made a finding that an employer had failed to make reasonable adjustments in seeking alternative work for a disabled employee, and issued a recommendation that an employer arranges training in disability discrimination issues for all managers (including certain named managers).

The EAT's decision in Thaine v London School of Economics UKEAT/0144/10.

Where an employee is dismissed on grounds of long-term sickness, it is inappropriate for the employer to go through the disciplinary procedure by issuing warnings, and giving the employee the chance to improve his attendance. However, consultation with the employee would normally be a prerequisite to unfair dismissal in such circumstances.

Does an employee who is on long term sick leave TUPE transfer if had he not been sick he would have been wholly or mainly assigned to the business?

The draft Working Time (Amendment) Regulations 2007 have now been published. The regulations would amend the Working Time Regulations 1998 to to increase the annual leave entitlement from four weeks to 5.6 weeks. The increase would take effect in two stages: workers would become eligible for the first additional 0.8 weeks from 1 October 2007 (four days a week for full-time employees) and the second 0.8 weeks from 1 April 2009 (making a total of eight days for full-time employees).

In Sinclair v Wandsworth Council UKEAT/0145/07/DM the employee, who was an alcoholic, was dismissed for twice turning up drunk for work. The EAT upheld the tribunal's finding that the dismissal was unfair as the Council had not given the employee a copy of its alcohol policy, which set out the circumstances in which disciplinary proceedings would be suspended pending treatment for alcoholism, and had failed to make it clear to the employee what steps he needed to take to avoid dismissal. However, the EAT held that the tribunal had erred in its approach to compensation when it assessed the reduction for contributory fault at only 25%. The tribunal had wrongly taken the view that, since alcoholism was an illness, the employee's drunkenness at work could not be taken into account as contributory conduct.

The Court of Appeal has held that, before an employer's duty to take care is triggered, it must be plain that an employee is suffering from stress and that an injury to health may occur.

An update on the ECJ's decision in the conjoined cases of Schultz-Hoff v Deutsche Rentenversicherung Bund C-350/06 and Stringer and others v HM Revenue and Customs C-520/06.

In Perry v Imperial College Healthcare UKEAT 0473/10 the EAT considered the position of an employee with two jobs who was dismissed for taking sick leave from one job while working in the other job.

A consent form to enable an employer to apply to an employee's GP or consultant for a medical report under the Access to Medical Reports Act 1988.

Employee self-certification form produced by HMRC for statutory sick pay (SSP) purposes. There is no need to use this form and employers can require employees to use their own form of self-certification if they wish.

In Corr (Adminstratrix of the Estate of Thomas Corr (deceased) v IBC Vehicles Limited [2008] UKHL 13), the House of Lords upheld the Court of Appeal's decision that an employer was liable under the Fatal Accidents Act 1976 for the suicide of a former employee who suffered from severe depression as the direct and foreseeable result of being seriously injured in an accident at work. There was no need to establish that suicide itself was reasonably foreseeable at the time of the accident, as the suicide was a consequence of the severe depression brought on by the accident and could not be regarded as so unusual and unpredictable as to be outside the bounds of what was reasonably foreseeable.

A consent form designed for an employee to complete following a request that they attend an examination with an employer's doctor. The form also seeks the employee's consent to the employer approaching the employee's GP or consultant for a medical report and/or medical records. The form may be adapted if the employee's GP or consultant is not being approached for a medical report and/or records.

The Employment Retention Bill had its first reading in the House of Commons on 13 March 2007 and was ordered to be read for a second time on 18 May and to be printed. The Bill makes provision for a statutory right to rehabilitation leave (disability leave) for newly disabled people and people whose existing impairments change. For further information see Hansard, House of Commons, 13 March 2007.

The Employment Retention Bill - the private member's bill which would create a statutory right to rehabilitation leave (disability leave) for the newly disabled and people whose existing impairments change - will be read for the second time in the House of Commons on 20 June 2008. The second reading had previously been due to take place on 14 March 2008. See House of Commons Votes and Proceedings, 25 April 2008; Employment Retention Bill.

Sample wording to be attached to a claimant's ET1 claim form, showing how, typically, a claim for unfair dismissal will be drafted when an employee has been dismissed by reason of capability due to ill health.

Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work.

The Court of Appeal has determined that a contract of employment revives at the time an individual exercises her right to return to work by serving the appropriate notice and a failure to allow an employee to return to work in circumstances where she is sick on the notified date of return can amount to unlawful sex discrimination.

In First West Yorkshire Limited t/a First Leeds v Haigh UKEAT/0246/07 the EAT held that the reasonable employer should give proper consideration to an ill-health retirement scheme before it dismisses an employee for long term sickness. In this case, the question of whether the employee's condition was permanent (and thereby fulfilled the necessary requirement for an ill health pension) was not answered before the employee was dismissed. The tribunal had been entitled to find that the employer should have taken advice on this question before deciding whether to dismiss. Given the employer had wished to avoid the possible costs of funding an enhanced ill-health retirement pension, section 98A(2) of the Employment Rights Act 1996 (which reverses the Polkey rule in cases of procedural default) did not apply.

If medical evidence states that a disabled employee is not fit to return to their substantive role in the foreseeable future, is there any guidance on how long an employee should be placed on a redeployment register before dismissal is considered?

The Government has announced firm proposals to increase workers' holiday entitlement under the Working Time Regulations 1998 from four weeks to 5.6 weeks per year. This represents an increase from 20 days per year to 28 for full-time workers, to reflect the eight bank holidays per year, which many employers currently already give in addition to the four weeks' annual leave, but many do not. Following a consultation which ended in September 2006, the DTI has published draft regulations and a second public consultation paper, Increasing the holiday entitlement - a further consultation. Under the proposals statutory annual leave entitlement would be increased in two stages, rising to 4.8 weeks (24 days) on 1 October 2007, and 5.6 weeks (28 days) on 1 October 2008.

A legal update on Reforming the Medical Statement, the Government's response to the consultation on the draft Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 which are due to introduce new statements of fitness to work ("fit notes") from April 2010.

The Department for Education and Skills (DfES) has issued a Green Paper entitled Raising Expectations: staying in education and training post-16. While still allowing under 18s to work, its proposals include: Requiring all 17-year-olds to continue to participate in education or training system from 2013, and extending this to those aged 18 at a later date. Providing incentives to encourage employers to provide accredited training and helping employers who are not able to develop their own training schemes find training opportunities for their young employees . Requiring employers who do not want to provide or arrange their own training for young employees to give them unpaid time off (for around a day a week) to attend training and to accommodate reasonable requests for young people to attend such training. To ensure that young people participate, a registration system will be created to enable local authorities to know what young people in their area are doing. There will also be a duty on providers to notify the system as soon as a young person drops out. If young people do not participate the DfES proposes issuing "attendance orders", and breach of this order could lead to either civil or criminal sanctions. For further information see Raising Expectations: Staying in Education and Training Post-16, Department for Education and Skills .

Is there any authority/ recent case law to support the argument that the employment status of an employee on long term sick leave receiving PHI benefits (and unlikely to ever return to work) is different to a typical employee (because they are just on the payroll so they can receive PHI benefits) so that the working time regulations do not apply and the employee does not accrue annual leave?

An update on the High Court's decision in Connor v Surrey County Council, 19 March 2009 (unreported). Note: this decision has been upheld by the Court of Appeal, see Legal update, Court of Appeal dismisses Surrey County Council's appeal in headteacher stress case.

In Heathrow Express Operating Company Limited v Jenkins the EAT held that an employment tribunal was not entitled to substitute its views for that of the employer when reviewing medical advice which the employer relied on to justify the disability related dismissal of its employee. The question of justification was subjective, the employment tribunal's function was limited to reviewing the employer's decision (similar to a manner in which it applied the "band of reasonable responses" test to the question of fairness in unfair dismissal cases). In contrast, whether or not the employer had complied with its duty to make reasonable adjustments was objective.

In Commissioners for Her Majesty's Revenue and Customs v Thorn Baker Limited [2007] EWCA Civ 626 the Court of Appeal upheld the High Court's decision that agency workers whose agency contracts are for a specified period of three months or less are not entitled to statutory sick pay (SSP). Agency workers can become entitled to SSP if, in a single contract: They work longer than the original period specified and the total period actually worked exceeds three months. The contract is extended for more than three months. The Revenue has also confirmed that those agency workers whose contracts are for three months or less can become entitled to SSP if two or more such contracts with the same agency are separated by eight weeks (56 days) or less and any of the following apply: The total length of the contracts is more than 13 weeks. The total period actually worked becomes more than 13 weeks. The contracts are extended so that together they can run for more than 13 weeks.

The House of Lords' decision in HM Revenue & Customs v Stringer and others means that employees on long-term sick leave are able to take paid annual leave even though they are not at work. It also means that employees can claim backpay from previous years when payments have not been made: this could prove expensive for employers.

In The Hospice of St Mary of Furness v Howard the EAT held that, whilst it is not necessary for a claimant to establish the cause of an alleged physical impairment, in such a case a respondent can seek to disprove the existence of that impairment by calling evidence to show either that the impairment is not genuine, or that the claimant is in fact suffering from a mental, not a physical, impairment. In this case the parties had jointly instructed a medical expert who concluded that the claimant suffered from a back complaint, despite an MRI scan revealing nothing and it not being possible to make a precise diagnosis. The EAT permitted the respondent, which had failed to elicit further information by putting questions to the jointly-instructed expert, to instruct a further medical expert. It held that the respondent had a good (as opposed to a fanciful) reason for wanting to do so; it wished to argue that the claimant's symptoms were either not genuine, psychogenic or could not be said to be substantial or long-term. Further, given that the claimant had served a schedule of loss in the region of £500,000, the additional expense and delay that would arise from a further expert being instructed was not disproportionate in the circumstances of the case.

The House of Lords has unanimously dismissed the appeal in Majrowski v Guy's and St Thomas' NHS Trust, and upheld the Court of Appeal's decision that an employer can be vicariously liable under the Protection from Harassment Act 1997 for harassment committed by an employee in the course of employment. This considerably widens the scope for employees to make claims against their employer where a manager or colleague has pursued a course of conduct that causes the employee alarm or distress. However, such claims can only be brought in the civil courts, rather than the employment tribunals.

I'm aware that holiday continues to accrue when an employee is on sick leave and that such employees should be permitted to carry over/be paid in lieu of that holiday; however what is the position when an employee is receiving PHI? Does holiday still accrue? Are they able to make a claim for untaken holiday?

How would you calculate a redundancy payment for an employee who has been off sick for 2 years and has exhausted all entitlement to sick pay?

Is there any case law (or legislation) regarding how statutory holiday pay is calculated when someone is on long term sick leave and receiving salary security payments which are based on a % of usual salary? Does the employer have to pay the employee his statutory holiday pay at the same rate as if he was working full time? Or can the employer use the % of pay the employee recieves on salary security (e.g. 75% of salary) to calculate holiday pay?

An employee has been off sick and exhausted their contractual sick pay. The same employee has planned a gradual phased return to work. My question is during the gradual phased return to work, how does the time not at work affect the employee's sickness entitlement and pay?

We have an employee who is required to do manual work. He is now saying he cannot lift and is waiting for a referral to see a consultant. What is the procedure for dealing with this?

Standards for managing workplace stress, produced by the Health and Safety Executive. The TUC has also published guidance on these standards for workplace safety representatives.

In respect of annual leave entitlement and sickness absence, what is the situation in respect of employees who work school term time only i.e. teachers/ catering staff or other employees of this type? If they are sick during the holiday period how do they carry over/ take any annual leave days when they were sick? Do they lose this entitlement or is it expected that they take any days extra during the term time period?

The Court of Appeal has held that there is no general obligation on employers to act in the best economic interests of their employees or to provide financial advice.

Dear PLC Our client is the employer. They have an employee who has been off work for an industrial accident that was the employee's not employer's fault. The employer is looking to use attendance as a selection criterion. Will the absences relating to the accident need to be discounted even though it was the employee's fault?

This code of practice on data protection in employment covers recruitment and selection procedures, management of employment records (including medical information) and monitoring of employees. In addition the Information Commissioner has published Supplementary Guidance and a Quick Guide for small businesses. See http://www.ico.gov.uk/for_organisations/data_protection/topic_guides/employment.aspx for these and further guidance from the Information Commissioner.

In Intel Corporation (UK) Limited v Daw, the Court of Appeal rejected the employer's appeal from the High Court's decision that it was liable for the personal injury suffered by its employee as a result of work-related stress. The Court of Appeal held that it is not a rule of law that an employee, who does not resign when stresses at work are becoming excessive, necessarily loses a right of action against their employer. It also held that the very considerable amount of helpful guidance in Sutherland v Hatton neither precluded nor excused a trial judge from conducting a vigorous fact-finding exercise or from deciding which parts of the guidance were relevant to the facts of a particular case. The reference to counselling services in Hatton did not make such services a panacea by which employers could discharge their duty of care in all cases. Whether the provision of such services would assist an employer to discharge its duty of care would depend on their relevance to the facts of the case. In this case, where management knew what steps were required, the fact that counsellors could have confirmed this would have been of no assistance to the employer.

Are there any cases setting out the position surrounding discretionary bonus schemes and employees being off work through sickness, and how this relates to disability discrimination? Thanks

If an employee is not required to resign during a career break (and therefore remains employed), are they entitled to statutory sick pay?

We have a company policy that where certified sickness absence coincides with prebooked annual leave then the annual leave can be reinstated which I believe reflects the Pereda case. Scenario is that employee on long term sickness - stress/depression related - got married abroad during a period of leave whilst signed off from work - I need to check whether leave for the wedding was booked pre illness or during as my interpretation is that if latter then there would be no need to reinstate from legal precedent basis as they are mereley exercising right to take leave whilst sick. If former then we have no choice but to reinstate the leave entitlement. Inevitably the issue with the management is that the employee in question has posted lots of photos of her enjoying her wedding/holiday on Facebook - manager is "old school" and finding it hard to accept that being certified as unfit for work does not mean it precludes doing anything where the individual might appear "happy" (in manager's eyes contrary to the reason for absence) - we can explain that bit of course but view on the earlier aspect would be helpful - many thanks

If an employee with a 3 month notice period (who is signed off sick at time of dismissal and for a further 3 months) is dismissed and the employer pays in lieu of notice - do they pay (a) Full 3 months Pay or (b) 3 months Half Pay* *(if the employee had not been served notice he would have received contractual half pay as sick pay). The part of plc regarding this issue does not deal with this specific point. Thanks

Is it permissible in an employment contract to provide that an employee's emoluments will be reduced if they suffer self-inflicted incapacity? (In this situation a software engineering company employ staff who enjoy extreme sports and the employer is concerned that employees might suffer broken wrists etc through their recreation and will therefore be unable to perform their employment duties.)

A summary of the employment law developments taking effect from 1 October 2007.

An overview of the developments in employment law taking effect in April 2009.

An update on the legislative changes that will take effiect on 27 October and 1 November 2008.

The High Court has held that employers owe a duty of care to employees not to cause them psychiatric damage by the volume or character of the work which they are required to perform.

A recent decision confirming that workers on long-term sickness leave do not accrue holiday pay will be welcome news to employers. However, its wider implications are not entirely clear.

A note outlining the key legal and practical considerations involved in managing and dismissing sick and disabled employees. Topics covered include operating a capability procedure, frustration of contract and permanent health insurance.

Where an employee has served the statutory notices indicating an intention to return to work after extended maternity absence, but is prevented from actually returning because she is ill, her right to return to work may be exercised by notifying her employer of her illness and there is no requirement for her to return to work. If her employer does not allow her to return, this will be treated as a dismissal which may be automatically unfair.

The Employment Appeal Tribunal has held that a refusal to pay a full loyalty bonus to two women on maternity leave or pregnancy related sick leave amounted to unlawful sex discrimination, even though the bonus was designed to reward the loyalty of those employees who worked during a defined period during a relocation programme.

In Department of Work and Pensions v Sutcliffe UKEAT/0319/07 the EAT dismissed the tribunal's decision that an employee who was certified sick during her ordinary maternity leave (OML) was entitled to be paid contractual sick pay during that period. The EAT held that, as sick pay is "remuneration" for the purposes of section 71(5)(b) of ERA 1996 read with regulation 9(3) of the Maternity and Parental Leave, etc Regulations 1999, it is excluded from the benefits available to women during OML. The EAT also concluded that the employer's maternity leave policy, which reflected the statutory position with regard to remuneration, was incorporated into the employee's contract of employment even though she had not been able to access it. The case is a useful illustration of the distinctions in the payment of sick pay to women who are absent with pregnancy-related sickness. During pregnancy (and prior to maternity leave) normal contractual sick pay rules apply. During maternity leave the statutory maternity pay scheme replaces ordinary pay (including sick pay). After maternity leave a woman who is off sick is once again entitled to any contractual sick pay in the normal way.

In McAdie v Royal Bank of Scotland [2007] EWCA Civ 806 the Court of Appeal endorsed the EAT's approach in finding that an employer could fairly dismiss an employee for ill-health capability despite the fact that the employee's stress-related illness was attributed to the conduct of the employer. Although the cause of the employee's incapability is a relevant factor for the tribunal to consider when determining whether or not a dismissal is fair, the key issue is whether the employer acted reasonably in all the circumstances, which include the fact that the employer was responsible for the ill-health. In this case, the employee made it absolutely clear that she would not consider returning to work (and medical evidence supported this). In reality, there was no alternative to dismissal. However, the Court of Appeal agreed with the EAT that where the employer is responsible for the employee's ill-health, it should normally make more effort to find alternative employment for the employee or put up with a longer period of sickness absence than would otherwise be reasonable.

An update on the publication of new guidance.

A report, Health at work - an independent review of sickness absence, has been presented to the government by Dame Carol Black and David Frost CBE.

Rachel Chambers of Cloisters, in conjunction with PLC Employment, has drafted a sample ET1, ET3 and checklist dealing with unfair dismissal for capability (ill health).

Impact of anti-discrimination legislation. Accommodation offset guidance published. Airline's discriminatory recruitment policy. Higher earnings for ethnic minorities in the public sector. Concerns about employers exploiting teenage "trainees". T&G champion casual workers. Increase in sick leave costs economy dearly. Discriminated health worker reinstated. Contract cleaners continue campaign for a living wage.

Government to subsidise Remploy workers' move to private sector. Flexible working study finds "gaps between perception and reality". German bank admits unfairly dismissing Australian executive but denies race discrimination. Police force offers prize draw to those not taking sick leave. New Acas Council Chair announced.

National Staff Dismissal Register to go live this month.Report reveals facts of agency workers.Employers could use lie detectors to discourage unnecessary absenteeism.Teacher loses disability claim relating to baldness.

IDS study shows UK workers have the lowest paid holiday in the EU. Research finds British workers suffer from "e-mail stress". Cornwall gangmaster's licence revoked after workers left to scavenge for food. LSC report calls for establishment of a professional body for equality and diversity practitioners. Acas online course on age discrimination.

Ex-employee brings discrimination claims against BNP Paribas. Reduction in sick leave taken by lowest paid. Discriminatory move by HM Prison Service. Incentives reduce work absenteeism across Europe. Acas updated materials on smoking and redundancy.

Defence Committee annual report reveals alarming levels of harassment. European Institute for Gender Equality to be established. TUC publishes FAQs on stress and disability. New Disability Rights Commissioner appointed. DRC reviews the Disability Discrimination Act and the public sector. Stewardess to sue airline over ban on taking Bible to Saudi Arabia. Independent immigration inspectorate to be established. Acas publishes research on its users. T&G members vote to merge with Amicus.

UK boasts third highest minimum wage in the European Union. DWP Minister announces new vocational rehabilitation task force. Employers support campaign to put a stop to mental illness discrimination in the workplace. Research finds fathers forgo promotion and take pay cuts to spend time with family. Commission on Integration and Cohesion says employers should be doing more to help integrate migrant workers.

NHS employers and trade unions are to undertake a review of how sickness absence is managed in the health service. The Financial Times has reported that the Pensions Commission will recommend an increase in the state pension and that the pension age should rise to 67. Surveys by the IRS Employment Review and the Employers Forum on Disability reveal different statistics for employers' responses to disability issues. Amicus and the printing industry have launched an agreement promoting co-operation in the workplace. The Health and Safety Executive has funded a new database which will provide details of cases involving repetitive strain injuries. Jenny Watson has been appointed as the new EOC chair. The CBI has rejected a request from the Government to co-operate with it in implementing more worker-friendly rights.

The Fawcett Society has published a report on reform of gender equality legislation. The Information Commissioner's Office has published a good practice note on outsourcing and a guidance note on privacy-enhancing technologies. The British Chamber of Commerce has warned that welfare reforms may lead to an increase in abseteeism in the workplace. It has been reported that the GMB has not confirmed whether it will merge with the T&G and Amicus to form the widely trailed "super-union". The EOC has appointed a new Deputy Chair.

An update containing key news stories of interest to employment lawyers for the week ending 28 November 2008.

An update containing key news stories of interest to employment lawyers for the week ending 3 July 2009.

Time limits for mental health claimants under the DDA. TUC finds working long hours is on the increase. EFD present Disability Standard results to Parliament. Discrimination on the grounds of accent? Parliamentary question on EHRC appointments. Government plans to address employee mental health and stress. Vetting candidates through Facebook is "possibly illegal".

New Equalities Office at the DWP to take responsibility for equality. EFA report finds workplace ageism still "endemic". Local councils to borrow £500 million to settle equal pay claims. Council fined for failing to produce correct wage records. Supermarket policy causes a stir. Acas holiday and holiday pay advice leaflet updated.

Survey finds gender pay gap increase among senior employees. IPPR recommend a minimum wage for London workers. Mandatory time off for union representative training expected to be announced at the Trades Union Congress. Sexual orientation discrimination claim resumes against HSBC. UK law firms abandon PQE associate lockstep systems for merit-based promotions. Further age claim against Freshfields withdrawn. Acas launches new online training courses.

In Lloyd v BCQ Ltd [2012] UKEAT 0148/12/1211; UKEAT/0239/12 the EAT considered whether there was an implied term in an employee's contract that his employment would not be terminated while he was in receipt of PHI benefits.

In The Commissioners for Her Majesty's Revenue and Customs v Thorn Baker Limited [2007] EWCA Civ 626 the Court of Appeal upheld the High Court's decision that agency workers whose agency contracts are for a specified period of three months or less are not entitled to statutory sick pay (SSP). Agency workers can become entitled to SSP if, in a single contract: They work longer than the original period specified and the total period actually worked exceeds three months. The contract is extended for more than three months. The Revenue has also confirmed that those agency workers whose contracts are for three months or less can become entitled to SSP if two or more such contracts with the same agency are separated by eight weeks (56 days) or less and any of the following apply: The total length of the contracts is more than 13 weeks. The total period actually worked becomes more than 13 weeks. The contracts are extended so that together they can run for more than 13 weeks.

A policy setting out an employer's approach to smoking in the workplace to comply with Part 1 of Chapter 1 of the Health Act 2006 and associated regulations. For further information, see Practice note, Smoke-free workplaces: implications for employers.

In O'Hanlon v Commissioners for HM Revenue & Customs the Court of Appeal held that, when her entitlement to sick pay had been exhausted under HM Revenue & Customs' sick pay policy, the employer's failure to continue to pay Mrs O'Hanlon was neither a failure to make a reasonable adjustment nor disability-related discrimination. The Court of Appeal endorsed the EAT's findings that Mrs O'Hanlon had been substantially disadvantaged and treated less favourably by the sick pay policy but that reasonable adjustments had been made and that the employer's treatment of her had been justified.The implications for sick pay policies will come as a relief to employers. A disabled employee will now find it very difficult to claim full pay during sick leave, once any contractual entitlement to full pay has been exhausted, unless, as in Nottinghamshire County Council v Meikle, the employer has caused the absence by failing to make reasonable adjustments which would have enabled the employee to remain at work.

This practice note considers the circumstances in which an employer might need to obtain a medical report on employees or workers and the steps that an employer must take when requesting a medical report (whether from a general practitioner, a specialist consultant, a company doctor or an occupational health specialist). It considers the impact of the Access to Medical Reports Act 1988, the Data Protection Act 1988 and the use of medical reports in tribunal proceedings.

An employment tribunal has dismissed a claim for pay for holiday accrued during a period of long-term sick leave because, as the worker had not requested holiday, he had not been denied it.

An outline of the key issues for employers offering a permanent health insurance scheme.

The Employment Appeal Tribunal (EAT) has held that, when dismissing an employee for an unacceptable level of absence, employers do not have to categorise the absences as either sickness or misconduct.

PLC podcasts are produced in collaboration with JurisProductions. The podcasts can be played through PLC's website, or downloaded in mp3 format. Access to PLC Podcasts requires a subscription or a free trial. This podcast discusses case law on the interaction between statutory annual leave under the Working Time Regulations 1998, sick leave, and statutory maternity leave. It also discusses the government's proposals for reform.

A checklist of the employment policies, procedures and forms which are commonly contained in a staff handbook, including links to those policies where they are found on PLC Employment. For a template staff handbook, see Standard document, Staff handbook.

The ECJ has held that the dismissal of a woman on grounds of sickness caused by pregnancy which arises either during the individual's pregnancy or her maternity leave, amounts to unlawful sex discrimination.

The European Court of Justice (ECJ) has held that it is sex discrimination to deny full pay to a pregnant woman absent from work due to a pregnancy related illness when an employee absent from work on grounds of some other illness would receive full pay.

In Marinello v City of Edinburgh Council [2011] CSIH 33 the Inner House of the Court of Session considered what was required for an identified course of conduct to amount to harassment under the Protection from Harassment Act 1997.

In Iqbal v Dean Manson Solicitors [2011] EWCA Civ 123 the Court of Appeal considered whether a series of three letters could amount to a course of conduct under the Protection of Harassment Act 1997.

The Employment Appeal Tribunal has held that an employer did not know, and could not reasonably have been expected to know, that an employee had a disability until it received a consultant’s report that had been jointly commissioned at the tribunal’s direction.

In July 2007 the Government announced a review of SSP after measures proposed in the Welfare Reform Green Paper "Empowering People to Work" to reduce complexity in Statutory Sick Pay failed to receive wide support. The final report of the SSP Review Working Group has now been published. The Group was of the view that the proposed reform of SSP was less critical to employers and employees than effective attendance management. However, it suggested: Removing the provision linking spells of sickness between different employers, as it is little used. Using the introduction of Employment Support Allowance (ESA) which will replace Incapacity Benefit from Autumn 2008 to reduce the information that employers are required to provide to the DWP about SSP. Reducing record-keeping requirments for employers with occupational sick pay arrangments (OSP) equal to or more generous than SSP. While outside the direct scope of the review, changes to medical certification which resulted in greater clarity and more detailed and valuable information on an employee's capacity for work, rather than reasons to refrain from work, would benefit both employers and employees. Again, while outside the scope of the review, better sickness absence management would result in significant savings for all parties. However, it thought that it would be inappropriate to amend legislation to link payment of SSP to management of absence. See Report of the Statutory Sick Pay Review Working Group, DWP, 2

The Employment Appeal Tribunal has held that rolled-up holiday pay could be set off against a worker's entitlement to paid annual leave under the Working Time Regulations 1998.

The Advocate General's opinion in Schultz-Hoff v Deutsche Rentenversicherung Bund C-350/06 which considers entitlement to annual leave after a period of absence due to illness has been made available in English. The opinion was handed down on the same day as Stringer and Others v Her Majesty's Revenue and Customs C-520/06 which concerned similar issues (see Legal update, Advocate General delivers opinion on holiday pay and sick leave). In Schultz-Hoff, the Advocate General has said that leave not taken by a worker because of illness during the leave year must be granted at a later date, or if employment has been terminated, a payment in lieu of that leave must be made. The Advocate General considers that a period of illness is equivalent to a period of service since the absence is beyond the worker's control and therefore justified.

In Scottish and Southern Energy plc v Mackay the EAT held that a failure to discuss options for alternative work with a disabled employee on long-term sickness absence was not of itself a failure to make reasonable adjustments. In this respect, preferred the decision in Tarbuck v Sainsbury's Supermarkets over that in Mid Staffordshire NHS Trust v Cambridge. However, it upheld the tribunal's decision that the lack of consultation rendered the dismissal of the employee unfair.

I have a query please about the pro rata principle for part-time workers. With a company sick pay scheme, paying a certain number of days sick in a 12 month period (say 5) , is the part-time worker's entitlement to that pro rata? Your standard junior employment contract and part-time worker clauses make no reference and I find unhelpful advice on government websites.

Hi, We have an employee who was signed off for a short period of time with stress. When he returned he was invited to attend a disciplinary hearing for poor performance and some quite negative feedback from a client. We are concerned that putting him through the process may be detrimental to his mental health - should we get a medical report to see if he is fit to go to the meeting? Thanks.

An employee has been off sick and exhausted their 28 weeks entitlement to Statutory Sick Pay. The employee has returned to work and three months later goes off sick again. Is the employee entitled to a further 28 weeks SSP?

The European Court of Justice has held that where a worker’s pre-arranged annual leave coincides with a period of sick leave, the worker must be permitted to designate an alternative period for annual leave under the EC Working Time Directive.

The government is consulting on draft regulations to replace the handwritten MED3 sick note with a fit note.

This note considers common issues related to sick pay, including an employee's eligibility for statutory sick pay and the exercise of discretion in relation to contractual sick pay.

In Adams and another v Harwich International Port Ltd ET/1503084/10 and 1503085/10, an employment tribunal considered whether the Working Time Regulations 1998 could be interpreted as allowing sick workers to carry over their 5.6 weeks' statutory holiday entitlement to the next leave year.

The Employment Appeal Tribunal has held that an employee’s length of service is irrelevant when considering the reasonableness of an employer’s investigation into sickness absence.

A procedure for managing sickness absence and its effects in the workplace. Integrated drafting notes. This document has integrated drafting notes embedded within the text. Click on a heading to read the note. See the Actions box on the right for additional viewing options.

The European Court of Justice has held that a worker who becomes unfit for work during a period of statutory annual leave must, under Article 7(1) of the Working Time Directive (2003/88/EC), be entitled to reschedule the period of planned leave that coincided with their period of unfitness for work.

The Smoke-free (Exemptions and Vehicles) Regulations 2007, as originally made.

The Smoke-free (Premises and Enforcement) Regulations 2006.

The Smoke-free (Premises and Enforcement) Regulations 2006 have been made. From 1 July 2007, it will be a criminal offence in England to smoke in a smoke-free place. The ban on smoking covers premises that are "enclosed" or "substantially enclosed" and the Regulations define these terms.

A practice note providing guidance to employers on the Health Act 2006 which requires workplaces to be smoke-free. The note deals with employment issues arising from an employer's implementation of the ban, such as formulating a no-smoking policy, dealing with smoking breaks, and disciplining employees who breach the ban. A detailed overview of the regulatory framework requiring enclosed and substantially enclosed public premises and workplaces to be smokefree and requiring landlords to display no-smoking signs is provided in PLC Property, Practice note, Smoke-free premises.

Sample "fit note" produced by DWP for statutory sick pay (SSP) and other social security benefit purposes. See also the DWP's Guide for Employers, Guide for Employees and Guides for Healthcare Professionals on fit notes.

A note on the relationship between statutory holidays and sickness absence in the light of the decisions in Stringer, Schultz-Hoff, Pereda and subsequent case law.

In two recent cases, the courts have given guidance on the extent to which employers will be treated as having been put on notice that an employee is suffering personal injury as a result of the stress he faces at work.

In Deadman v Bristol City Council [2007] EWCA Civ 822 the Court of Appeal has provided further guidance on the scope of stress at work claims in the context of employment procedures such as disciplinary procedures. In this case the employee's stress arose from the employer's manner of conducting an investigation and informing him of a renewed investigation by leaving a letter on his desk. The Court of Appeal upheld the Council's appeal and overturned the High Court's decision that this conduct of the employer amounted to breaches of the contract of employment which caused the employee's illness. The Court of Appeal held that there was no contractual term to act sensitively and the fact that the employee would suffer psychiatric illness as he did was not reasonably foreseeable.

The Court of Appeal has confirmed that the test for an employer's liability for stress at work remains the conduct of the reasonable and prudent employer taking care for his workers' safety in light of what he ought to know.

The Court of Appeal has held that employers should not be held liable for occupational stress unless they know, or reasonably ought to have known, that a particular employee is vulnerable to workplace pressures.

In Harding v The Pub Estate Company Limited the Court of Appeal has held that a pub landlord who suffered a heart attack failed to establish that his employers had breached their duty to take steps to protect his health.

In Hiles v South Gloucestershire NHS Primary Care Trust the High Court held that Ms Hiles had suffered injury to her health as a result of forseeable stress at work. The High Court awarded Ms Hiles, a health visitor who had worked for her employer for only two and a half years, almost £62,000 in damages. She suffered a complete nervous breakdown after bursting into tears during her performance review. See Hiles v South Gloucestershire NHS Primary Care Trust.

A policy covering the steps an employer should take to prevent and combat stress in the workplace.Integrated drafting notes. This document has integrated drafting notes embedded within the text. Click on a heading to read the note. See the Actions box on the right for additional viewing options.

The Advocate General has handed down his opinion in Stringer and Others v Her Majesty's Revenue and Customs C-520/06 where he considered whether article 7 of the EC Working Time Directive means that workers must receive minimum annual paid leave of four weeks during a long period of incapacity for work. The Advocate General has said that a worker can accrue paid annual leave while off sick but cannot take that paid annual leave during their sick leave. He added that on termination of employment workers are entitled to compensation for annual leave which has accrued but has not been taken due to illness.

The Smoke-free (Signs) Regulations 2007, as originally made.

The Employment Appeal Tribunal has given guidance on the approach to be taken by tribunals when considering whether an employee had properly exercised their right to take time off work.

The Employment Appeal Tribunal has held that the right to time off for domestic emergencies does not cover compassionate leave as a result of the death of an elderly dependant.

A legal update on the employment tribunal's decision in Shah v First West Yorkshire Limited ET/1809311/09.

In First West Yorkshire Limited t/a First Leeds v Haigh UKEAT/0246/07 the EAT held that the reasonable employer should give proper consideration to an ill-health retirement scheme before it dismisses an employee for long-term sickness. In this case, the question of whether the employee's condition was permanent (and thereby fulfilled the necessary requirement for an ill health pension) had not been answered before the employee was dismissed. The tribunal had been entitled to find that the employer should have taken advice on this question before deciding whether to dismiss. Given the employer had wished to avoid the possible costs of funding an enhanced ill-health retirement pension, section 98A(2) of the Employment Rights Act 1996 (which reverses the Polkey rule in cases of procedural default) did not apply.

The Court of Appeal has found that an employer could fairly dismiss an employee for ill-health incapability despite the fact that the employee's stress-related illness was attributed to the employer's conduct.

In Vahidi v Fairstead House School Trust the Court of Appeal found that a school was not in breach of any duty when it permitted a teacher to continue working following a period of absence with a depressive illness. The teacher's relapse was forseeable but had been forseen by the school which provided appropriate support and monitoring.

If an employer and future employee have agreed on a start for that employee to commence their employment and the employee has on that basis accepted an unconditional offer of employment, does the employee have any recourse if the employer subsequently informs the employee that the start date will be delayed (e.g. for a number of months) because it is considered that the employee will not be fit for work on the original start date (i.e. due to sickness absence).

Hello, We have an employee who requested to return to work early during her maternity leave but on the day she should have returned she was sick and has been signed off sick for one month. According to your note below she should be treated as if she was on sick leave but ... payroll have advised that because she was still within her 39 weeks SMP period, she must continue to be paid SMP (not SSP or company sick pay). This contradicts your online advice, please can you confirm I am interpreting it correctly. Thank you. Pregnancy and maternity leave: the legal framework, Employees wishing to postpone their return, Taking sick leave: If a woman is unable to return to work at the end of her maternity leave because of sickness, she will not lose her right to return. She will be regarded as having returned to work and as being absent on sick leave, so she will need to follow the employer's sickness absence procedure. She is entitled to be paid statutory (and, if applicable, company) sick pay, and her employer must treat her in the same way as other employees who are on sick leave.  

In Haward v Fawcetts the House of Lords considered the three year limitation period prescribed by section 14A of the Limitation Act 1980 and the extent of the knowledge required by the claimant to start the time period running. It held that time started to run when the claimant had knowledge of the "factual essence of the act or omission" which caused the loss. It was not necesary for the claimant to know the precise details of the alleged negligence or conclusively identify the acts or omissions that caused his loss. The claimant only needed to have had sufficient information to make it reasonable to commence investigations into the potential claim against the defendant (section 14A gives the claimant three years to complete such investigations). This case has implications for stress claims against employers. For further information see PLC Dispute Resolution, Legal update, Negligence: limitation period - what knowledge starts time running?

What should an employee do if an employer refuses to pay SSP even though the employee meets the eligibility criteria?

I have a case that we are defending on behalf of the Respondent at a tribunal. The Claimant is claiming non payment of notice pay. His contract allows a 3 month notice period. He worked from 2005 to September 2011 for a period of 6 full years. Section 86 and 87 of the ERA 1996 state that as long as the statutory period plus a week is less than the contractual (in this case 12 weeks), no notice monies are payable. The claimant had been on long term sick leave for 13 months at the time of termination and no questions are to do with disability or unfair dismissal ONLY notice pay. Is there a case that you can inform me of that is clear (for tribunal purposes) in setting out the steps to prove that no payment of notice is owed.

An update on the ECJ's decision in Pereda v Madrid Movilidad SA C-277/08 concerning a worker's right to annual leave under the EC Working Time Directive.

The Employment Appeal Tribunal has held that a worker, who had been on sick leave throughout a leave year, was entitled to payment for that year’s unused statutory holiday on the termination of her employment.

Could a day off work for an operation count as the first day of sickness absence for the purposes of calculating SSP? For example, an employee takes Monday off due to needing an operation, but is then off sick for a further 10 days following the operation, could the initial Monday count as day one of sickness absence?