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February 2010 Updates

Government to launch "fit notes" in April 2010

The Social Security (Medical Evidence) and the Statutory Sick Pay (Medical Evidence) Regulations 2010 are coming into force on 6 April 2010. Under this new system:

  • "Fit notes" (or statements of fitness for work) are set to replace "sick notes".
  • There will no longer be a "fit for work" option. Instead, doctors can advise
    that a patient is "not fit for work" or "may be fit for work".
  • There will be space for the doctor to give general advice about the impact
    of an employee's illness or injury and how this may affect an employee's
    ability to work.
  • The maximum duration a fit note can be issued for will be reduced from six to three months during the first six months of a health condition.

The Government intends to provide specific guidance for individuals, employers and healthcare professionals shortly.

British Airways' "no visible jewellery" policy deemed not discriminatory

In Eweida v British Airways plc, the Court of Appeal decided that British Airways' uniform policy, which stated that employees may wear any jewellery they wish provided it is not visible, was not indirectly discriminatory against one of its employees, Ms Eweida. Mrs Eweida wanted to visibly wear a silver cross, representing her Christian faith, with her uniform. For the indirect discrimination claim to have been successful, there must have been a provision, criterion or practice which applied to all employees (in this case the uniform policy), but put those employees who share Ms Eweida's religious beliefs at a disadvantage compared to other employees. In this case, no other employees felt similarly disadvantaged.

Agency workers

In Muschett v HM Prison Service, Mr Muschett brought a range of discrimination and dismissal claims against the prison service (and the agency which had placed him there) when his assignment with it was ended. The Court of Appeal had to consider whether Mr Muschett's role as an agency worker had developed into that of an employee. On the facts of this case, the Court of Appeal decided that Mr Muschett was not an employee. In deciding this, the Court of Appeal looked at some of the typical factors which help establish whether there is an employer/employee relationship. These include:

  • The degree of control that an individual has over their work.
  • Whether there is an obligation upon the individual to personally carry out the work required.
  • Whether the parties are obligated to take certain steps in respect of each other (e.g. for the individual to personally carry out the work with the other party paying them a wage or other remuneration in return).

In this case, the Court of Appeal decided that Mr Muschett's contractual terms were clear (and were that of an agency worker). Therefore, there was no need to imply a contract of employment between the parties.

Constructive dismissal

The Court of Appeal looked at two different issues of constructive dismissal in the case of Buckland v Bournemouth University Higher Education Corporation.

Firstly, the Court of Appeal reviewed the test which should be applied when deciding whether an employer's breach of contract is so severe as to entitle an employee to claim constructive dismissal. In doing so, it rejected the argument that the "range of reasonable responses test" (i.e. whether the employer's response was one falling within a bandwith of responses that a reasonable employer could reasonably take) was the appropriate one. The correct test for establishing constructive dismissal is whether there has been a fundamental breach of contract, not whether the employer has acted unreasonably.

The Court of Appeal also reviewed a second issue, of whether an employer can "fix" such a fundamental breach in advance of an employee treating it as a dismissal. The Court of Appeal decided that, once a contract has been fundamentally breached, the employer can't then remedy the breach. The Court of Appeal noted that, to decide otherwise, would enable an employer to right their wrongs, and would deny the employee the option of accepting the breach and using it as a reason for resignation.

Variation to contract clause

The Employment Appeal Tribunal has given its decision in Bateman v Asda Stores, deciding that a broad contractual right to alter terms and conditions of employment in line with business needs which is set out in an employee's contract of employment permits their employer, without the need for the employee's consent, to make one-sided changes to the employee's contractual terms. Permitted changes in this case extended so far as to include changes to rates of pay and hours of work. These changes will only be permissible, however, provided that (as well as being covered by an express contractual provision), they are properly implemented and the employer acts in line with the implied duty to maintain trust and confidence.


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SRA number 404293