July 24 2006 Employment Law Enews

Welcome to the latest edition of employment law enews.

SICKNESS RULED TO NOT CONSTITUTE 'DISABILITY'

The European Court of Justice ("ECJ") has recently confirmed that sickness does not in itself class as a disability, and is not a prohibited ground of discrimination. The question was posed to the ECJ following a claim of disability discrimination by a Spanish employee. The employee was certified unfit to work on grounds of sickness in October 2003, and was given notice of dismissal in May 2004. No reasons were given for the dismissal, and it was inferred that it was a direct result of perpetual sickness. Given that there is a causal link between sickness and disability, the Spanish court sought clarification in its decision from the ECJ.

The ECJ advised that a disability is a limitation that results from a physical, mental or psychological impairment that hinders the participation of the person concerned in professional life. In addition to this, they suggested that a disability should be typically viewed as a long-term condition. It was also held that EC legislature had deliberately used the word 'disability' rather than 'sickness', and as such the two concepts were not the same. There was therefore no provision of EC law that prohibited discrimination on the grounds of sickness.

The decision supports the direction generally followed in the UK in respect of disability discrimination. Employers should remember that an employee who is off sick for a reason related to a disability will be protected under the Disability Discrimination Act.

FIXED-TERM EMPLOYEES MAY HAVE BECOME PERMANENT ON 10 JULY 2006

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 enable fixed-term employees to gain permanent status from 10 July 2006. An employee will automatically gain permanent status once they have been employed for a total of 4 years and are on their second or subsequent fixed term contract. An employer can only object to this if they can objectively justify their position.

An employee who believes that their status has changed, can write to their employer and request a statement of variation of their contract to reflect the change. The employer has a duty to respond within 21 days, and must provide full reasons if they wish to assert that the employee remains on a fixed-term contract. If an employer fails to respond, responds outside the time limit, or responds evasively, an employment tribunal can declare that the employee has permanent status.

HOUSE OF LORDS CONFIRMS EMPLOYERS CAN BE VICARIOUSLY LIABLE UNDER THE PROTECTION FROM HARASSMENT ACT

In the recent case of Majrowski v Guy's and St Thomas' NHS Trust, the House of Lords upheld the Court of Appeal's decision that an employer can be vicariously liable under the Protection from Harassment Act 1997 ("the Act") for acts of harassment committed against an employee. Liability under the Act will arise in the civil courts, and falls outside the scope of the employment tribunal.

The primary purpose of the Act was originally to protect individuals against stalking. However, since the Act's introduction it is now clear that it applies to a wider range of offences. The claimant in this case alleged that his manager had bullied, intimidated and harassed him during the course of his employment. Rather than bringing a discrimination claim in the employment tribunal, the claimant decided to take his claim to the civil courts. The House of Lords ruled unanimously that employers could be vicariously liable under the Act.

This case clearly paves the way for alternative causes of action for employees suffering harassment at work. Typically, employees suffering bullying or harassment in the workplace have been forced to bring claims for breach of contract, unfair constructive dismissal, or claims under the discrimination legislation. In more extreme cases a claim for personal injury has been available. There are now several advantages to an employee when bringing a claim for vicarious liability under the Act. Claimant's need only prove that they have experienced 'anxiety' or 'distress' over a course of conduct (two or more occasions), they have no duty to prove that the conduct was discriminatory, and claims will be permitted up to 6 years after the alleged conduct. On a more positive note for employers, the more cost-sensitive nature of the civil courts may put many potential claimants off.

This article copyright © 2006 Steeles Law llp. All rights reserved.