Some key employment decisions in 2009

Claiming further holiday if sick during holiday leave

The European Court of Justice (ECJ) has held in Francisco Vicente Pereda v Madrid Movilidad SA [2009] c-277/08 that a worker who is sick during his annual leave is entitled to take replacement annual leave at another time. In rescheduling the leave, the employer's interests can be taken into account but if for business reasons the replacement leave cannot be taken in that leave year the employer must allow it to be carried over to the following holiday year.

Motive and race discrimination

The Employment Appeals Tribunal has held in]Amnesty Internationational v Miss B Ahmed [2009] UKEAT/0477/08/ZT[/url] that if disadvantageous treatment suffered by an employee is on the grounds of his or her race then it is irrelevant that the motives behind this were founded on good intentions. This case also confirmed that whilst an act of discrimination would usually constitute a breach of mutual trust and confidence and therefore support a finding of constructive dismissal, this is not necessarily always the case. In this case the employer, Amnesty International, had sought to avoid posting an employee to a role where her racial origins were perceived as causing significant risk to her and potentially to others. The motive therefore was understandable but it was still discrimination on the grounds of race. The good intention prevented it being an act of constructive dismissal.

Religion and belief discrimination

the Employment Appeals Tribunal in]Grainger plc & Ors v Nicholson [2009] UKEAT/0219/09/ZT[/url] has upheld an Employment Tribunal's decision that an individual's belief in man-made climate change and the existence of a moral duty to live in a way that mitigates or avoids it was capable of being a "philosophical belief" for the purposes of the Employment Equality (Religion or Belief) Regulations 2003.

TUPE and material detriment

The Employment Appeals Tribunal has held in]Tapere v South London and Maudsley NHS Trust [2009] UKEAT/0410/08/DA[/url] that regulation 4(9) of TUPE which deems an employee to have been dismissed if he suffers 'a substantial change in working conditions to [his] material detriment' must, among other things, be interpreted subjectively from the employee's point of view. This makes it easier for an employee to establish a dismissal under Regulation 4(9) and will create much greater risk of dismissals being deemed to have occurred in TUPE situations where there is any change to the working conditions of the employees transferred.

Constructive dismissal

The Court of Appeal has held in Stuart Peters Ltd v Bell [2009] EWCA Civ 938 that where an employee is constructively dismissed, the employer need not compensate him in full for the notice period if the employee has obtained alternative work elsewhere. The Court took a different approach to that in cases of actual dismissal, because in those cases it is considered good industrial relations practice to give full compensation during what would have been the notice period, had proper notice been given.

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