More on Sickness...

Holiday lost to sickness

In the latest development, an employment tribunal has applied the European Court of Justice Pereda decision (reported in our September 2009 Alert) to a domestic case for the first time, and has rewritten the Working Time Regulations (WTR) in the process.

The tribunal case, Shah v First West Yorkshire Limited, concerned an employee who was off sick during the entirety of a pre-booked four week holiday, scheduled for the end of the holiday year. The employer refused the employee's request to reclaim the lost holiday in the following holiday year and the employee brought a claim in the employment tribunal for breach of the WTR. However, as the wording of the WTR does not actually allow holiday to be carried over to the next holiday year, the tribunal could only give effect to the EC Working Time Directive (as interpreted in Pereda) if it was able to interpret the WTR in light of the Directive. The tribunal decided that it was able to do so, by adding new words to the WTR that disapplied the prohibition on carry-over in cases where the employee had been unable due to sickness to take their holiday entitlement in the relevant holiday year.

Although this decision is not binding on other tribunals, it shows that tribunals are willing to go as far as rewriting domestic legislation to give effect to EU law (relying on the decision by the Employment Appeal Tribunal (EAT) in Attridge Law v Coleman (disability discrimination by association) where the EAT added new sections to the Disability Discrimination Act to give effect to the Equal Treatment Framework Directive). It remains to be seen whether other tribunals, and ultimately the appeal courts, will agree with this decision but in the meantime, employers are advised to take the cautious approach and allow workers to carry over holiday when sick leave and pre-booked holiday coincide.
 
"Fit notes" - will they reduce sickness absence?

Perhaps better news for employers is the planned introduction of "fit notes" from April 2010, to replace the current sick note regime. The new look medical statement will give GPs the option of either declaring the employee "not fit for work", or state that the employee "may be fit for work" taking into account the GP's advice on how a return to work can be facilitated. The fit note will then list common types of changes (not an exhaustive list) that may facilitate a return, such as a phased return, altered hours, amended duties or workplace adaptations.

The Government's intention behind the new system is to encourage an earlier return to work by focusing on what the employee can do, rather than just their incapacity, and to promote discussions between the parties.  Some readers will have noted that the types of changes on the fit note mirror some common "reasonable adjustments" for the purposes of disability discrimination - whilst it may not be appropriate to rely on the fit note alone, it could provide a "short cut" in many cases towards complying with the duty to make reasonable adjustments.  It will be interesting to see how, if at all, the new fit note regime will change attitudes to sickness absence, both of GPs, employees and employers.