Tag Archives: Miller Samuel

The European Court of Justice (“ECJ”) last month held that an individual may successfully claim indirect discrimination, even where that individual does not have the protected characteristic being relied upon and is not part of the particular disadvantaged group. While not an employment law case, the implications of this ruling will impact the employment and HR sphere.

The previous position

The concept of associative discrimination is not new. In Coleman v Attridge Law, the carer of a disabled child suffered discrimination by her employer when she sought to take additional time off work to care for her son, following a request to work from home. While not herself disabled, the ECJ held that if the employer’s detrimental treatment towards the claimant was because of the fact her son was disabled, she should be protected under anti-discrimination legislation. The effect of this decision was to provide protection against direct discrimination by association.

Same-sex couples are able to get married or register a civil partnership in England, Scotland and Wales, which gives them many of the same rights as heterosexual couples. Now that the US has also recognised same-sex marriage as legal in Obergefell v Hodges, the issue of sexual orientation is likely to move into the spotlight of ensuring equality under employment law.

Recognising what protections UK employment law offers gay and lesbian people, and what conduct may be identified as discriminatory can be good practice for all employers as they look to promote an equal and productive work environment.

The Employment Appeal Tribunal (“EAT”) has now provided further clarification on holiday carry-over entitlements where an employee is absent due to illness. While it is now settled that annual leave continues to accrue during sick leave and that a worker cannot be compelled (although may choose voluntarily) to take holidays during sick leave, the resultant implications of that legal position were more problematic. What length of time does a worker have to take those holidays upon returning to work? Does the carry-over allowance apply only to those physically unable to take holidays during their sick leave? If so, does the onus fall on the worker to demonstrate this? Would employers have to make medical decisions as to whether an illness is sufficiently limiting to qualify? Some of these questions have been addressed (for now at least) by the EAT in Plumb v Duncan Print Group Ltd.

Last month, the Queen delivered her first Queen’s Speech prepared by a Conservative-majority government since 1996. Unsurprisingly, in the 19 years which have elapsed since John Major’s last year in Number 10, the governmental agenda has radically changed. Yet the Conservatives’ perennial inability to unite on the question of Europe is one factor which remains. From an employment law perspective, the consequences of the Conservatives’ internal rift in this respect may be significant. While a the proposed  abolition of the Human Rights Act was removed from the Queen’s Speech at the last minute, a number of prominent agenda points which did still feature will undoubtedly have employment law implications.

On Tuesday of this week, the Court of Appeal in Northern Ireland issued its decision in the case of Patterson v. Castlereagh Borough Council, this being the next stop on the now epic journey which the tribunals and courts have taken in trying to determine what should and what should not be accounted for in an employee’s entitlement to holiday pay.

It may be an apt time of year for this decision given the number of people who will now be going on a summer holiday, but the finding of the court may mean that employers will have immediate worries, rather than being able to leave them behind for a week or two.

Get paid by your employer for travelling around? Could soon be a reality for some workers following a recent opinion of the Advocate General of the ECJ.

The Advocate General (Yves Bot) has this week drafted an opinion that travelling workers without a regular fixed place of work should have their travel time to and from their first and last assignments treated as “working time”. While the opinion of the Advocate General is not a binding legal decision and accordingly should be treated with due caution, in practice such opinions are highly persuasive and often followed by the European Court of Justice (ECJ).

Employers have been warned by legal experts that staff could be recording what they say or recording private conversations to obtain incriminating information or take legal action against them.

An article in the Financial Times cites high-profile cases such as the FIFA arrests as a prime example of tapped equipment to record. Such equipment is used in sexual harassment cases and other employment tribunals in order to challenge an employer.