In this round up of recent cases, we consider an EAT decision on recovery of unpaid holiday pay on termination of employment, an EAT decision on associative disability discrimination, the ICO's finding of a breach of data protection in the NHS, an EAT decision on combined indirect sex and race discrimination, and a ruling of the ECJ that a worker dismissed during part-time parental leave is entitled to full-time notice pay.

Employee entitled to seven years' holiday pay on termination!
The EAT upheld a tribunal's decision, in Beijing Ton Ren Tang (UK) Ltd v Wang, that an employee, who was found to have an oral term in her employment contract that "if she did not take her holidays she would be paid in lieu of holidays not taken at the end of her employment", had the right to pay in lieu of untaken holidays for the whole period of her employment, not merely the final leave year.

The employee raised a claim under contract, as opposed to under the Working Time Regulations (WTR), and the EAT found that she was entitled to pay in lieu of all 131.5 days she had foregone during her 7 years' employment. Therefore, notwithstanding the limits on carry over and pay in lieu in the WTR, it may be possible for an employee to achieve a more favourable result by bringing a contractual claim. Employers should take care to ensure that their contracts are worded to make it clear that payment in lieu is limited to holiday accrued in the final leave year.

EAT upholds tribunal on associative disability discrimination
The EAT has upheld the decision of an employment tribunal that the Disability Discrimination Act 1995 (DDA) is capable of being interpreted so as to protect people who suffer discrimination or harassment by so called associative discrimination (EBR Attridge LLP v Coleman (no. 2)). However, it disagreed with the tribunal about the wording that should be read into the relevant provisions of the DDA. It considered that the tribunal's solution of applying the DDA protections to those "associated with a disabled person" might lead to tribunals becoming bogged down in arguments about what amounts to an "association". The EAT instead inserted two new sections into the DDA protecting individuals from discrimination or harrasment by reason of or which relates to the disability of another person.

The EAT went on to hold that the obligation to read the DDA in line with the these amendments would run from the point at which the Directive was implemented in the United Kingdom, being 1 October 2004. Unless the decision is appealed, the case will now return to the employment tribunal to decide whether Ms Coleman actually suffered discrimination by reason of her son's disability.

ICO decision that NHS breached Data Protection Act on transfer of personal information to a home computer
The Information Commissioner's Office (ICO) has found that Mid-Staffordshire NHS Foundation Trust was in breach of the Data Protection Act 1998 (DPA) after a member of its HR team transferred personal information about a Trust employee, which was not password or encryption protected, to a home computer. The ICO held that the Trust was in breach of the DPA, which requires appropriate technical and organisational measures to be taken to prevent unauthorised or unlawful processing of personal data.

In the ICO press release, the Assistant Information Commissioner strongly advised organisations to avoid instances where employees can download and transfer personal information to personal computers.

EAT decision on combined indirect sex and race discrimination
In Ministry of Defence v DeBique, the EAT upheld a tribunal's decision that a female soldier from a Commonwealth country, who was also a single parent, was indirectly discriminated against on the grounds of sex and race. The requirement that she be available for duty on a "24/7" basis put her at a particular disadvantage because of childcare issues, but was not in itself discriminatory, as it could be justified. However, a restriction on bringing relations from abroad to facilitate childcare, which would not have affected British soldiers in the same way, taken together with the 24/7 requirement, was discriminatory on the grounds of sex and race. The EAT recognised that the claimant experienced a "double disadvantage" and commented that discrimination is often a "multi-faceted experience".

This decision relates to indirect discrimination and will therefore continue to be relevant after the implementation of the Equality Bill. The Government consulted earlier this year upon provisions in the Equality Bill relating to multiple discrimination. The Government proposes to legislate only against direct discrimination, although several respondents to the consultation replied that indirect multiple discrimination should also be included in the proposed legislation.

A worker dismissed during part-time parental leave is entitled to "full-time" notice pay
In Meerts v Proost NV the ECJ held that the Framework Agreement on Parental Leave, annexed to the Parental Leave Directive, entitles workers who are dismissed during part-time parental leave to receive compensation relating to their notice pay based on their full-time salary, rather than their reduced part-time parental leave salary.

Part-time parental leave is not provided for under the national provisions in the UK, and therefore, on the face of it, this case does not have any direct relevance in the UK. However, the ECJ's comments raise the possibility that provisions in the Employment Rights Act 1996, which mean that employees on parental leave on generous notice periods may receive little or no notice pay if their notice period coincides with that leave, may be contrary to the Directive.

17 November 2009

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