Employment Law – The Equality Bill 2010 / New "Fit Notes" / Sickness during holiday

Ince & Co – Employment Law

The Equality Bill 2010

The Equality Bill received Royal Assent on 8 April 2010 and became the Equality Act 2010. The majority of its provisions will come into force in October 2010. This is arguably the most important and long-anticipated piece of employment legislation due to come into force this year.

The Act aims to unify and re-state existing discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief and age, adopting a common approach where appropriate. It introduces some significant changes particularly in relation to gender pay discrimination and the introduction of new types of disability discrimination.

Obviously it is important that all employers are familiar with their obligations under the Act and it may be necessary to issue new workplace policies setting out the employer’s anti-discrimination policies. We will be issuing further bulletins on this during the course of the year.

New “Fit Notes”

Under the Social Security (Medical Evidence) Regulations 2010, with effect from 6 April 2010, the traditional sick note will be replaced with a ‘fit note’. This means a GP will indicate whether an employee is fit for work and suggest actions that an employer can take to facilitate an employee’s return to the workplace. This is designed to tackle the problem of employees’ long-term absences from work by making it easier for partially-fit employees to return to work. Suitable adjustments for a partially fit employee could include allowing a phased return to the workplace, altered working hours or permitting working from a different place. The Government intends to publish more detailed guidance for individuals, employers and healthcare professionals shortly.

Employers should therefore now be able to encourage partially fit employees to get back into the workplace. However, there may be increased potential for disputes with employees regarding the scope of adjustments that may be required to accommodate their return and careful consideration should be given to making these adjustments as reasonable as possible.

Sickness during holiday

Shah v First West Yorkshire Limited

In our October 2009 Employment Law Update we reported on the case of Pereda v Madrid Movilidad in which the European Court of Justice (ECJ) held that the Working Time Directive (implemented in Great Britain by the Working Time Regulations 1998) requires workers on sick leave during a period of scheduled annual leave to be given the right to take annual leave at a later date. This has now been considered and applied by the domestic courts.

The Working Time Regulations 1998 give workers a right to 5.6 weeks leave per year. At least four weeks of that leave can only be taken in the leave year to which it relates.

In this case, Mr Shah’s holiday year under his contract of employment ran from 1 April to 31 March. Mr Shah booked a four week holiday from 22 February to 21 March 2009 (accounting for 12 days of his annual holiday entitlement as he worked a three day week). However, Mr Shah broke his ankle and was absent from work between 15 January and 18 April 2009. His sickness absence therefore overlapped with his holiday period. In April 2009, Mr Shah asked his employer if he could reclaim his 12 days holiday but was refused on the basis that this holiday related to a previous holiday year and had therefore been lost.

The Tribunal held that national law must follow the ECJ decision in Pereda and permit an employee who falls sick during a period of annual leave to take that annual leave subsequently within the holiday year or, if time does not permit, within the following leave year.

 As a result of this decision, employers may wish to consider implementing policies and procedures for the reclaiming of holiday time lost due to illness.

About the Author:
Ince & Co is an international commercial law firm with offices in Dubai, Hamburg, Hong Kong, Le Havre, London, Paris, Piraeus, Shanghai and Singapore.
Our clients range from major international corporations to smaller companies, sole traders and private individuals. We practise English, French, German, Greek and Hong Kong law and advise on Singapore law in arbitrations.
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