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January 2009 Updates

TUPE consultation

The Employment Appeal Tribunal held that a transferee is not obliged to consult with transferred employees after a transfer in relation to measures which it proposed taking in relation to them (Amicus v Glasgow City Council). This is an important decision. It effectively means that a transferee can implement measures immediately following the transfer. The transferee does not have to go through its own post-transfer information and consultation process around proposed measures before being able to reach a final decision and implement it.

Long-term sickness absence and holiday pay

The European Court of Justice gave its opinion in Stringer v HMRC (previously known as Ainsworth v HMRC). It held that a worker who is on sick-leave for the whole of an annual leave year is entitled to a period of 20 days' paid annual leave despite the fact they are not actually at work. (This was the minimum statutory amount under the Working Time Regulations at the relevant time for this case. It has since risen to 24 days and will be rising again shortly to 28 days). The national courts can decide whether the paid leave can be taken during that year or whether it should be carried over to another year. Either way, the employee is entitled to be paid at some point. Furthermore, the right to paid annual leave is not extinguished at the end of a leave year if the worker was on sick leave for the whole of that year or if he was absent on sick leave for part of the year and was still on sick-leave when his employment terminated. We expect that the House of Lords will overturn the Court of Appeal's decision from April 2005 that the right to paid holiday leave did not accrue during periods of sickness absence.

Disability discrimination and reasonable adjustments

In Eastern & Coastal Kent PCT v Grey, the Employment Appeal Tribunal held that an employer is only exempt from the duty to make reasonable adjustments in respect of a disabled job applicant/employee where four specific criteria apply. These are that the employer:

  1. does not know that the disabled person has a disability; and
  2. does not know that the disabled person is likely to be at a substantial disadvantage compared with someone who is not disabled; and
  3. could not reasonably be expected to know that the disabled person had a disability; and
  4. could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with a person who is not disabled.


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SRA number 404293