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2009 Quite a year in the Employment Arena

Jennifer Smith, Employment Solicitor at Ralli, Looks at some of the highlights (or possibly lowlights!) of 2009.

1. So long, farewell to the statutory DDPs and GPs. The 6 April 2009 saw the repeal of the statutory dispute resolution procedures to deal with discipline and grievance. One of the most notable changes is that the new Code is not legally binding and a failure to comply will not result in an automatically unfair dismissal. However, where the Employment tribunal does consider there to be an unreasonable failure to comply, compensation can be adjusted by up to 25%. Employers are advised to closely follow this guidance to avoid any finding of unfair dismissal on procedural grounds.

2. How was your holiday? A decision was reached in HM Revenue and Customs v Stringer with important implications for employers. The principal finding was that workers continue to accrue statutory holiday whilst on sick leave. It was also suggested that annual leave accrued by a sick worker could not be extinguished at the end of the leave year, and must be permitted to be carried over into the next year.

Since the coming into force of the Working Time Regulations 1998, employees have had the right to a minimum amount of annual paid leave. This has always posed tricky issues as regards staff on long-term sick leave. They might argue that their entitlement should be the same as every one else. However, an employer might argue that the purpose of paid annual leave was to provide rest from work. Hence, those on long-term sick leave ought to relinquish that right. The recent House of Lords decision in Stringer makes clear that employees do continue to accrue statutory paid holiday entitlement during periods of sick leave. This will no doubt be a unwelcome holiday pay development for employers.

In the Spanish case of Pereda v Madrid Movilidad, Mr Pereda had been injured at work shortly before his annual leave was due to start. His injury caused him to be incapacitated throughout nearly all his holiday. The employer refused Mr Peredas request to take the holiday later in the year a decision which Mr Pereda challenged. The European Court held that a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave even if that is outside the reference period for the period of leave.

3. What a difference a (hey)day makesEmployers across Britain breathed a temporary sigh of relief with the ruling that employees have no automatic right to work beyond the age of 65. However, it was made clear by the judge ruling on the case that forcing people to retire at 65 is unsustainable and needs reviewing. Furthermore, with the judge adding that the decision may well have been different had the government not already ordered an imminent review of the issue, this is a strong signal that some in the judiciary disapprove of the current position.