Cases to watch in 2011

This year brings a number of cases which could have a significant bearing on the employment law landscape. Here is a brief roundup of cases to watch out for in 2011.

When are employees entitled to legal representation in disciplinary proceedings?

This article is in association with Rosenblatt law firm

The Employment Relations Act 1999 provides that employees and workers are entitled to be accompanied only by a trade union representative or a work colleague at internal disciplinary hearings. However, in specific instances, employees could be entitled to legal representation. In R (on the application of G) v Governors of X School and Y City Council, the Court of Appeal found that a teacher was entitled to legal representation by virtue of Article 6 of the European Convention on Human Rights (the right to a fair trial) during disciplinary proceedings for alleged sexual misconduct with a student. It decided that this was appropriate because of the gravity of the allegations in the case and the potential repercussions of an unfavourable outcome, which could mean an end to the teacher’s career. The case is now set to be considered by the Supreme Court in April.

Can cost justify a compulsory retirement age?

The abolition of the default retirement age is set for 6 April 2011 and the trepidation among employers is almost tangible. Subject to transitional provisions (which will allow some retirements to continue if notice has been given before 6 April 2011), employers will not be able safely to retire employees at any age without triggering discrimination unless they can justify it as a proportionate means of achieving a legitimate aim. The German case of Fuchs v Land Hessen has been referred to the European Court of Justice (ECJ) and it is hoped that this will provide some much needed guidance on the issue of justification and in particular whether or not a business which needs to retire employees to save costs can justifiably do so.

Does inflation of redundancy scoring for a woman on maternity leave discriminate against men?

In De Belin v Eversheds, the tribunal found that the employer discriminated against Mr de Belin on grounds of his sex after automatically inflating the redundancy scoring of a female colleague on maternity leave and selecting him for redundancy as a consequence. The case was concerned with the special treatment afforded to women in connection with pregnancy. The case was appealed to the Employment Appeal Tribunal and a judgment is due shortly.

Does the right to statutory paid annual leave expire at the end of the leave year?

In Pereda v Madrid Movilidad SA in 2009, the ECJ found that under the Working Time Directive, a worker on long-term sick leave should be allowed to carry forward statutory paid leave to the following leave year. Despite this being applied by the employment tribunal in Shah v First West Yorkshire Ltd, the ECJ’s decision is actually inconsistent with the UK’s Working Time Regulations 1998, which provide that untaken leave does not carry over to the following year. In the pending case of KHS AG v Schulte, the ECJ is due to address the specific question of whether or not our national legislation is actually lawful in providing that statutory paid annual leave expires at the end of a leave year. The decision, if adverse, could seriously affect the way that UK employers manage leave and the ensuing cost burden placed upon them. Watch this space!

Philip Minnis, solicitor, Rosenblatt Solicitors

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