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Employment law case updates - July 2014

8 July 2014

Here are some recent important decisions of the Courts and Tribunals that highlight key developments in employment law.

Must reasonable adjustments be made for non-disabled employees who are associated with disabled people?

An employee whose daughter suffers from Down's syndrome has lost her claim in the Court of Appeal (CA) against her employer, the Ministry of Defence (MoD). She argued that the MoD was under a duty to make reasonable adjustments to enable her to care for her disabled daughter.

The CA held that an employer's obligation to make reasonable adjustments only extends to employees or job applicants who are themselves disabled. There is no duty, either under the Equality Act 2010, or the Equal Treatment Framework Directive, which requires adjustments to be made for a non-disabled employee who is associated with a disabled person.

(Hainsworth v Ministry of Defence, CA)

Employers can deduct salary where employee fails to serve notice

It is well established that penalty clauses (ie provisions that allow one party to claim an amount in damages that is not a genuine pre-estimate of their losses) are unenforceable.

In this case the Employment Appeals Tribunal (EAT) has confirmed that a clause entitling an employer to deduct a month's salary where an employee failed to work their notice period was not a penalty clause and was therefore enforceable, even if such a deduction is made on top of the employee not receiving their notice pay.

Whether a clause is a penalty or not will always depend on the facts of each case.

In this case, the fact that the employee in question was highly skilled and difficult to replace on short notice led the EAT to conclude that such a clause was a genuine pre-estimate of the employer's loss.

(Yizhen Li v First Marine Solutions and another, EAT)

Delay in resigning due to sick leave will not prevent constructive dismissal

An employee who had suffered racial harassment and discrimination was on sick leave for six weeks before resigning and subsequently claiming constructive dismissal. The employer sought to argue that the delay in resigning meant that the employee had "affirmed" any repudiatory breach of contract.

The EAT disagreed. It held that whether any period of delay is affirmation of a breach will depend on the specific circumstances and, where an employee is on sick leave, it will not be so easy to infer that they had affirmed a contract.

The EAT considered that six weeks was a short period of time from which to infer an acceptance of the breach when an employee was on sick leave.

(Chindove v William Morrisons Supermarket plc, EAT)

Are deceased workers still entitled to holiday pay?

The European Court of Justice (ECJ) has confirmed that where an employment relationship comes to an end because of a worker's death, the worker's estate will be entitled to a payment in lieu in respect of any accrued but untaken holiday.

In this case, Mr Bollacke had been absent from work due to ill health for several months and, at the time of his death, had 140.5 days of accrued but untaken leave. The ECJ held that a payment in lieu in respect of such untaken holiday was "essential to ensure the effectiveness of the entitlement to paid annual leave"

(Bollacke v K + K Klaas & Kock B.V. and Co, ECJ)

This article was written by Kirsti Laird.

For more information, please contact Kirsti on +44 (0)20 7427 6411 or kirsti.laird@crsblaw.com