New “fit note” will come into force on 6 April 2010

From 6 April 2010, a new “fit note” will replace a doctor’s sick note. Unlike a doctor’s sick note, a “fit note” will allow a doctor to suggest that a sick employee may be fit to do some work if, e.g. their working hours or job duties are changed.

The new “fit note” can be viewed in the Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 [SI 2010/137].

Also see New guide about "fit notes".

Court of Appeal clarifies TUPE law in relation to collective agreements

In Alemo-Herron v Parkwood Leisure Ltd [2010] EWCA Civ 24, the Court of Appeal held that a private-sector transferee is not legally obliged to comply with any changes (e.g. a pay increase) made to the terms of employees transferred from the public sector - if those changes were agreed by a public-sector negotiating body - after the TUPE transfer had taken place.

The Court of Appeal followed the ECJ’s decision in Werhof v Freeway Traffic Systems (C-499/04) and stated that the decisions of the domestic courts in cases such as Whent v Cartledge (EAT/39/96) were wrong.

Government’s statement about information and consultation agreements may be wrong

Under reg. 14 of the Information and Consultation Regulations 2004 (the 2004 Regulations), an employer is obliged to invite representatives to enter into negotiations to reach an information and consultation (I&C) agreement as soon as reasonably practicable. The employer is not obliged to issue the invitation within a three-month period after the date on which a valid employee request was made to negotiate an I&C agreement: Darnton v Bournemouth University [EAT/0058/09].

Paragraph 31 of the Information and Consultation Regulations 2004: DTI Guidance (January 2006) states that:

“Following an employee request to negotiate an I&C agreement ….. the employer should initiate negotiations with representatives of the employees as soon as reasonably practicable, and within 3 months at the latest.”

The EAT said that the word “should” in paragraph 31 suggested that it could have been intended to state an expectation of the employer rather than a legal obligation. However, the paragraph was legally wrong if it meant to say that an employer had a legal obligation to “initiate negotiations with representatives of the employees ….. within 3 months at the latest.”

Also see Penalty of £10,000 for breaching Information and Consultation laws.

Dismissal of employee for distributing pornography did not breach their right to freedom of expression

In Henderson v London Borough of Hackney (EAT/0072/09), Miss Henderson was employed as a mentor for vulnerable school girls (e.g. girls with special needs) at a secondary school. She was dismissed for using the school’s computer to receive and forward pornographic emails to a school colleague. The emails were not seen by the school girls but it was possible that they could have done so.

Miss Henderson claimed that her dismissal was a breach of her right to freedom of expression under Art.10(1) of the Human Rights Act 1998 (HRA).

The EAT disagreed. Her right to freedom of expression was subject to Art. 10(2) of the HRA 1998 which protected the rights of others (e.g. the school girls). The protection of the school girls from being exposed to pornography was a legitimate aim - and the tribunal had found - that Miss Henderson’s dismissal was a proportionate measure to achieve the aim. In addition to this, Miss Henderson did not appreciate the harm that could have been caused by the pornographic emails.

Also see Dismissal of diabetic employee for viewing pornographic images was unfair

Calculating a notice period on the basis of an employee’s age is unlawful

In Kucukdeveci v Swedex GmbH & Co. KG (C-555/07), German law provided that the notice period for terminating an employee’s employment increased with their length of service, however, the period of employment before the employee’s 25th birthday was discounted.

The ECJ held that the law did not comply with the Equal Treatment Directive (2000/78/EC), and therefore, the period of employment before an employee’s 25th birthday should be taken into account when calculating the notice period.

The German Government stated that the law had a legitimate aim. Its aim was to provide employers with more flexibility to manage their staff numbers by reducing the financial cost of dismissing a young worker. It was reasonable to expect younger workers to quickly find other jobs due to their high degree of personal or job mobility.

However, the ECJ replied that the law was not an appropriate measure to achieve the aim because it applied to all employees who were employed before their 25th birthday regardless of their age at the time of their dismissal.

An employer is not obliged to inform and consult everyone about a TUPE transfer

Under reg. 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, an employer is obliged to inform and consult the representatives of the “affected employees”. An “affected employee” is an employee who will or may be transferred; an employee whose job is in jeopardy by reason of the proposed transfer; or an employee who applied for a job in the part of the business to be transferred: Unison v Somerset County Council [EAT/0043/09].

A non-transferring employee who may apply for a job in the transferred part of the business is not “affected employee” even though they would no longer be notified about such a job before it was advertised externally. Therefore, an employer is not legally obliged to inform and consult the representatives of such an employee.