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September 2008 Updates

Challenge to compulsory retirement age rejected by European Court of Justice advisor

Last year, Heyday and Age Concern (also known as The National Council on Ageing) sought judicial review of the Employment Equality (Age) Regulations. They argued that an employer’s ability, contained within the Regulations, to compel an employee to retire at the age of 65 was unlawful. However, the UK’s Advocate-General, a senior legal adviser to the European Court of Justice, has backed the current UK rules and has held that it is not discriminatory to require employees to retire when they reach 65. Although the Advocate-General’s view is not binding, it is likely to be followed by the European Court when it reaches its decision on the matter (expected at the end of this year).

Amount of notice an employer is obliged to give when
requiring an employee to take holiday

In the case of Industry & Commerce Maintenance v Briffa, an Employment Tribunal heard that an employer was in breach of the Working Time Regulations 1998 when it required its employee to take four days holiday in his last week of employment in order to use up his outstanding entitlement. The Regulations state that an employer must give notice of holiday dates "double the amount of time to be taken". As the employee was not given eight days notice of his holiday, the Tribunal held that his employer could not legally require him to take it. However, the Employment Appeal Tribunal allowed the employer's appeal, noting that the particular Regulation in question can be varied or excluded by a "relevant agreement". In this case there was a contractual term which covered the position in relation to taking holidays during any notice period. Without it, the standard position under the Regulations will apply.

Calculating compensation where a dismissal process results
in future sickness absence

The Employment Appeal Tribunal has recently considered the approach to calculating compensatory awards. The individual in this particular case was dismissed after she was suspected of theft. She denied the allegations and none of them were ever proved. The individual subsequently found new work (at lower pay) but soon became ill and had to leave that job. An Employment Tribunal found the dismissal was unfair. When considering the issue of compensation for loss of future earnings, it concluded that the dismissal process was at least one cause of the individual’s illness, and therefore it included a sum to fully cover her losses during her sickness absence. This was appealed against. The Employment Appeal Tribunal noted that the individual’s illness started some 20 weeks after her dismissal, and that there were ongoing investigations by the police and the local council. It held that this must all be taken into consideration when deciding whether the illness was sufficiently caused by the actions of the employer such as to justify a finding that it was responsible for the illness and consequently for the loss of earnings. The Employment Appeal Tribunal went on to say that there should not be an 'all-or-nothing approach', but one that takes into account the percentage to which the employer's actions are responsible for the illness as against the other factors.

Church of England concedes that members of the clergy are
employed by the Church rather than God

The Church of England has conceded that its clergy are employed by the church and not by God. Prior to this, the Church has always maintained that its ministers are outside the scope of employment protection legislation, arguing that clergy are not employees but office holders occupying ‘a living’.


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SRA number 404293