31 July 2010

Employee cannot receive sick pay and do paid work at the same time

In McCann v Clydebank College [EATS/0061/09], Mr McCann, a part-time lecturer, was absent from Clydebank College (the College) due to stress and hypertension. Mr McCann was dismissed for receiving sick pay from the College – while he was doing paid work in his own business – without the consent of the College. The EAT held that the College had fairly dismissed Mr McCann for gross misconduct.

Mr McCann was not dismissed because the College believed that if he was fit to work in his own business – he was also fit to work at the College.

The College had a legitimate interest in preventing Mr McCann from doing any paid work during or outside of his part-time working hours because:

• The other work done by Mr McCann may have hindered his prospects of recovery.
• Mr McCann received sick pay to compensate him for his lost income. If Mr McCann was still able to earn an income – he should have done so with the College’s consent, e.g. the College may have allowed him to do the paid work with reduced sick pay.

Practical Implications for HR Professionals

A sickness absence policy should clearly state that an employee must obtain the written consent of their employer in order to undertake any paid or unpaid work for another employer if they are absent from work due to ill-health.

29 July 2010

Disability Discrimination

In Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 910, the Court of Appeal confirmed that the House of Lord’s decision in the housing case of Lewisham Borough Council v Malcolm [2008] UKHL 43 about the correct comparator in disability-related discrimination claims also applied to employment cases.

The Malcolm case overruled the Court of Appeal’s decision in the employment case of Clark v Novacold Ltd [1999] IRLR 318.

Comment: The practical implications of the Aylott case are very limited because s. 15 of the Equality Act 2010 (EA) will resurrect the Novacold case and nullify the Malcolm case. Section 15 of the EA 2010 is expected to come into force on 1 October 2010.

27 July 2010

25 July 2010

Constructive dismissal

In Bedford v Pilgrims Group Ltd [EAT/0106/10], the EAT held that an employer’s failure to pay an employee for their outstanding holidays was not a fundamental breach of their contract of employment. Therefore, the employee could not claim that they had been constructively dismissed.

The EAT acknowledged that an employer’s failure to pay wages (including holiday pay) to an employee does not automatically amount to a fundamental breach of their contract of employment: Cantor Fitzgerald International v Callaghan [1999] EWCA Civ 623.

23 July 2010

Agency Workers

In RSA Consulting Ltd v Dr Evans [2010] EWCA Civ 866, there was a quadripartite relationship where:

• Parasol Ltd employed Dr Evans to provide services for an end-user either directly or via a client such as RSA Consulting Ltd (RSA).
• Parasol Ltd had a contract with RSA to supply Dr Evans to an end-user (i.e. Pharmanet).
• RSA had a contract with Pharmanet.

Dr Evans made a claim for an unauthorised deduction from her wages against RSA even though there was no written contract between Dr Evans and RSA. The Court of Appeal held that it was arguable that there was an implied contract between the parties and the case was remitted to the employment tribunal.

19 July 2010

New guide for Tier 2 or Tier 5 applications

The UK Border Agency has published a new guide for employers about Tier 2 or Tier 5 applications made on or after 19 July 2010.

The guide is available at the UK Border Agency’s website.

14 July 2010

Employment Agencies laws will come into force on 1 October 2010

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2010 [SI 2010/1782] will come into force on 1 October 2010.

The regulations provide employment protection rights for workers such as actors, dancers, musicians and models, e.g. an agency cannot charge an upfront fee for work finding services from a model.

Regulation 10 will remove the requirement for agencies to carry out suitability checks for work-seekers if they are not working with a vulnerable person.

A vulnerable person is “any person who by reason of age, infirmity, illness, disability or any other circumstance is in need of care or attention, and includes any person under the age of eighteen.”


Further information about the regulations can be found on the Business Link website.

6 July 2010

Limit on redundancy pay was not discriminatory

In Kraft Foods UK Ltd v Hastie [EAT/0024/10], the EAT held that the aim of an enhanced redundancy payment (ERP) scheme - was to compensate an employee for the earnings which they would have earned - if they had remained employed until their retirement at the age of 65.

Therefore, a limit that prevented an employee aged 62 from receiving an ERP that would have been higher than those earnings – did not amount to unlawful age discrimination – since the limit was a proportionate means of achieving a legitimate aim.

The removal of the taper provision for employees aged 64 from the statutory redundancy pay scheme did not automatically mean that a similar taper or limit on an ERP could not be objectively justified.

5 July 2010

No allowances for women on maternity suspension

The ECJ has ruled that a woman on maternity suspension is not entitled to be paid an on-call allowance: Gassmayr v Bundesminister fur Wissenschaft und Forschung (C-194/08).

Similarly, the ECJ ruled that a flight attendant who was temporarily transferred to an office job due to her pregnancy is not entitled to be paid certain allowances (e.g. an allowance for long-haul flights) when she was performing the office job: Parvianen v Finnair Oyj (C-471/08).

In both cases, the ECJ said that the payment of the allowance was dependent on the performance of a specific task which the women could not perform during the period of their maternity suspension.


Also see Discrimination on the grounds of maternity leave

New guides on the Equality Act

The Government Equalities Office (GEO) has published some guides on the Equality Act 2010.

The guides are available at the GEO website.

Also see More new guides on the Equality Act 2010.