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Long Term Sickness Absence: how long will unused annual leave carry over?

10th July 2015

The quick answer, following a recent Employment Appeal Tribunal decision, is 18 months from the end of the leave year in which it is accrued. As ever, a quick answer only invites slow analysis, so let’s look a little closer. In practice, we are talking about the right of an employee returning from long term sickness absence, or dismissed before returning, to seek holiday pay arrears reflecting annual leave not taken during the sickness absence period. It may be fair to conclude that few employees on long term sick leave would think to pick up the phone to HR and book two weeks’ holiday, even if this would bring them two weeks’ worth of holiday pay rather than SSP. So the law steps in and protects the accumulated right to annual leave, should the employee become aware of his rights and decide to take the point. But how far does the principle extend? Mr Plumb, the claimant in Plumb v Duncan Print Group (EAT judgment handed down on 8 July 2015), argued that his entitlement was open ended, because neither his employment contract nor UK law dictated to the contrary. Having been off sick for almost 4 years, he claimed holiday pay for his 2010 to 2012 leave years after his employment terminated in February 2014. The employer refused. What did the EAT decide? After a careful analysis of EU regulations and directives, they concluded that the proper period of carry over was 18 months from the end of the leave year…

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Indirect Discrimination: shaking off the coat tailers

29th June 2015

Indirect discrimination is all about the presence of a “provision, criterion or practice” (PCP) in the workplace that puts individuals with protected characteristics at a disadvantage compared to those without them, where the employer cannot justify the PCP. One way to set about proving the harmful effect of the PCP on groups is to produce a statistical analysis. If that provides grounds to conclude that a group with a common characteristic has been disadvantaged, does the burden then pass to the employer (a) to justify the PCP or (b) to admit liability and hope for a loophole when it comes to remedy? Evidently not, according to the Court of Appeal in Home Office (UK Border Agency) v Essop & others, decided on 22 June 2015. Membership of the disadvantaged group is not sufficient. The claimant must also establish why the PCP disadvantaged him as an individual. This case was all about a Home Office requirement for promotion applicants to pass a Core Skills Assessment. A statistical analysis showed that applicants sharing a black minority ethnic (BME) characteristic, or aged over 35, had a notably lower pass rate. In the Court of Appeal’s view, the statistics were not conclusive on their own. One notable comment: – “But why should a coat tailer, if he can be identified as such, be entitled to succeed?” A coat tailer, in context, would be an individual who had failed the CSA for a reason other than the perceived disadvantage inflicted by the PCP. Such an…

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