CBI Employee Health & Absence Conference
Latest legal developments




Gareth Wadley, Eversheds LLP
15 June 2010
• Holidays for the long term-sick – is the confusion
  over?

• The Equality Act
   – Disability discrimination
   – Pre-e...
The Stringer case
Do those on long term sick accrue their
statutory holiday entitlement?


    2002 – EAT – oh yes they do...
The Stringer case   1.   Does not preclude Member
                         States from preventing a
                      ...
The Pereda case

• Where a worker does not wish to take annual
  leave during sick leave, annual leave must be
  granted f...
Shah v First West Yorkshire Limited ET


• The first Tribunal decision giving effect to the
  ECJ’s decision in Pereda
• E...
Equality Act
Where are we now?
Equality Bill published               April 2009

Royal Assent (Bill became            8 Ap...
Prohibited conduct
 Indirect discrimination
• Disability indirect discrimination is problematic:

   – S6(3)(b) - a refere...
Prohibited conduct
Disability discrimination
Discrimination arising from disability
   • New type of disability discrimina...
Equality Act – changes made
Disability discrimination
• Pre-employment health questions:
   – Prohibited, but only EHRC ca...
Equality Act – changes made
Disability discrimination
• Pre-employment health questions
• New rules won’t apply to questio...
Contact details

Gareth Wadley
Associate

Eversheds LLP
One Wood Street
London EC2V 7WS

DDL: 0845 497 0973
Fax: 020 7919 ...
© EVERSHEDS LLP 2010. Eversheds LLP is a limited liability partnership.
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Cbi employee-health-absence-conference-gareth-wadley

  1. 1. CBI Employee Health & Absence Conference Latest legal developments Gareth Wadley, Eversheds LLP 15 June 2010
  2. 2. • Holidays for the long term-sick – is the confusion over? • The Equality Act – Disability discrimination – Pre-employment health questions
  3. 3. The Stringer case Do those on long term sick accrue their statutory holiday entitlement? 2002 – EAT – oh yes they do… 2005 – CA – Oh no they don’t – N.B. – can only claim under WTR… 2006 – HL – Ask a friend (ECJ)… 2009 – ECJ decision – Oh yes they do
  4. 4. The Stringer case 1. Does not preclude Member States from preventing a worker on sick leave taking annual leave 2. Precludes annual leave being extinguished at the end of a leave year or carry over period EWTD 3. Requires a payment–in- lieu of untaken annual leave on termination at the “normal” rate
  5. 5. The Pereda case • Where a worker does not wish to take annual leave during sick leave, annual leave must be granted for a different period • Reclassification of annual leave as sick leave if fall ill during holiday?
  6. 6. Shah v First West Yorkshire Limited ET • The first Tribunal decision giving effect to the ECJ’s decision in Pereda • ET interpreted the Working Time Regulations 1998 in line with the EC Working Time Directive • Held that an employee whose pre-arranged holiday coincided with a period of sick leave should be allowed to carry over that leave entitlement to the following holiday year
  7. 7. Equality Act Where are we now? Equality Bill published April 2009 Royal Assent (Bill became 8 April 2010 Equality Act) Most provisions were to take October 2010? effect under old government New public sector equality April 2011? duties Private sector pay gap reporting Not before 2013? becomes compulsory?
  8. 8. Prohibited conduct Indirect discrimination • Disability indirect discrimination is problematic: – S6(3)(b) - a reference to persons who share a protected characteristic is a reference to persons who have the same disability – Particular disadvantage must affect those who share claimant’s particular disability, but – How easy will it be for person with a particular disability to demonstrate group disadvantage? (Way in which disability manifests itself varies from person to person)
  9. 9. Prohibited conduct Disability discrimination Discrimination arising from disability • New type of disability discrimination - ‘detriment arising from disability’ intended to reverse effect of Malcolm (2008) and replace the previous concept of ‘disability related discrimination’. – eg dismissing for poor attendance record when absence was a consequence of a disability. The employer will have to show that dismissal was a proportionate means of achieving a legitimate aim.
  10. 10. Equality Act – changes made Disability discrimination • Pre-employment health questions: – Prohibited, but only EHRC can take action – Applies to questions asked about health at any time before offering employment – No free-standing right for individual to complain, but – burden of proof reversed in complaint of disability discrimination if candidate doesn’t get job/promotion – makes it harder to defend claim
  11. 11. Equality Act – changes made Disability discrimination • Pre-employment health questions • New rules won’t apply to questions asked: – To ascertain whether reasonable adjustments are needed in respect of any assessment for the job – To establish whether an individual will be able to carry out a function that is intrinsic to the work concerned – For monitoring purposes – For the purpose of taking positive action, or – Where having a particular disability is an occupational requirement
  12. 12. Contact details Gareth Wadley Associate Eversheds LLP One Wood Street London EC2V 7WS DDL: 0845 497 0973 Fax: 020 7919 4919 E-mail: garethwadley@eversheds.com www.eversheds.com
  13. 13. © EVERSHEDS LLP 2010. Eversheds LLP is a limited liability partnership.

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