Work trying to get rid of me after knee op. *Settled Out Of Tribunal*

[obiter dictum]

How long have you had the job

Does your condition fall under the Equalities Act, has the condition a capacity to stop you from normal day to day functions in the future

How big is your employer staff wise

Can you be Relocated into other roles with your condition if applicable

[obiter dictum]

You are coverd under the Equality Act and have protected characteristics due to your cancer treatment, even if in remission. Your employer will be on dodgy ground due to the staff head count in not being able to offer you a temporary role withing the business until your knee is fixed. They will have to show justification for your dismissal under capability grounds if you are currently at no cost to the business. Your cancer treatment should be discounted as an absence as you are protected, although they can record but not use against you. What is your total absence during the last 12 months as a direct result as to your knee complaint

[obiter dictum]

You mention a trade union, has your union managed an ill health retirment policy with the business. This can be generous, All it shows is that you are not capable of doing your job role at the time of dismissal. That is the worst case scenario and by mutual agreement betwen employer and employee

[obiter dictum]

Have you confirmed if your company does an ill health retirement agreement with the trade union. It works out at a years wages tax free

[obiter dictum]

Court of Appeal rules on sick workers and annual leave

 

25 July 2012

 

ISSUE :

The Court of Appeal has today handed down its decision in the case of NHS Leeds v Larner.

 

The issue for the Court of Appeal to decide was whether or not an employee, who is on sick leave, must make a request to carry forward an entitlement to accrued annual leave into a new leave year.

 

The Court of Appeal held that an employee who is prevented from taking paid annual leave because they were sick is entitled to carry over their untaken annual leave to the next leave year without making a prior request. Where employment is terminated before leave that was carried over could be taken, an employee is entitled to a payment on termination.

 

KEY DATES :

The judgement was handed down to the parties today, 25 July 2012.

 

IMPACT :

The Court of Appeal judgement follows conflicting EAT decisions in Larner and Fraser v Southwest London St George’s Mental Health Trust. It has clarified that the EAT position in Larner is correct: accrued leave carries over to a new leave year automatically.

 

It seems that employers will now be obliged to pay sick employees holiday that has accrued in previous leave years. Unfortunately, the Court of Appeal did not consider whether a time limit can be placed on this. In KHS AG v Winfried Schulte, the ECJ held that a 15 month time limit for using carried over leave is compatible with European law so it is still open for employers to argue that a time limit applies. However, the position on this remains unclear following the Court of Appeal’s decision.

 

A further question mark remains over the difference between the 4 weeks annual leave awarded by European law and the 5.6 weeks annual leave awarded by the Working Time Regulations 1998. The Court of Appeal refused to address this point. However, pending further guidance from the courts, it may be possible to argue that only 4 weeks per leave year carries over.

 

ACTION :

Employers will not welcome this decision and should consider undertaking a review of employees on long term sick as, while they remain on the books, they are continuing to accrue holiday.