|
Advocate-General's opinions on discrimination by association
and accrual of holiday
18 February 2008
Two recent Advocate-General opinions handed down in the European
Court of Justice ('ECJ') are likely to affect employers' practices
if the ECJ upholds them. Although the opinion of an
Advocate-General is not binding on the ECJ, it is followed in the
majority of cases.
Discrimination "by association"
It is estimated that six million people in Britain provide
unpaid care for disabled people. Many of these have full-time or
part-time jobs elsewhere. In the Advocate-General's view, employees
who provide such care should be protected from discrimination in
their employment. If the ECJ agrees, then employers ought to:
- Amend their equal opportunities policies to cover
discrimination on grounds that a person is a carer of a disabled
person
- Treat requests for flexible working from employees wishing to
care for disabled relatives with the same care as is required for
such requests from new mothers. (Note that, with the changes last
April to the regulations on flexible working requests, employers
must in any event follow the prescribed procedure when presented
with a request for flexible working to look after a dependent
adult)
Discrimination 'by association' against an employee on grounds
of some other person's race, sexual orientation or religion is
prohibited in the UK. The same does not appear to be true of
discrimination on grounds of sex or disability, because of the
wording of UK legislation. However, the recently published opinion
of the Advocate-General may change that, at least in relation to
disability.
Coleman v Attridge Law
The Advocate-General concluded that it is unlawful for an
employer to treat an employee less favourably because the
individual has an 'association' with a disabled person.
Sharon Coleman, whose son suffers from congenital breathing
difficulties and requires special care, claimed she was forced to
resign from her position as a legal secretary with Attridge Law, a
law firm, as she was refused the same flexible working hours as
other staff and was singled out by her employer for discriminatory
treatment because of her disabled son. Ms Coleman said she was
described as "lazy" when she asked for time off to look after her
child, and that she was refused permission to work from home, when
her child needed an operation. This treatment, said the
Advocate-General, could amount to unlawful discrimination contrary
to the general framework directive for equal treatment in
employment.
If the ECJ agrees, employers are likely to face increased
absences from employees who care for disabled relatives and claims
that a refusal to agree to a flexible working request to look after
a disabled relative contravened disability discrimination laws.
The Court is expected to deliver its judgment this year.
Staff on long-term sickness should accrue holiday
pay
The Advocate-General concluded that a worker's entitlement to
paid holiday as provided by the Working Time Directive (not
contractual holiday entitlement over and above that required by the
directive) does accrue whilst a worker is on sick
leave. He added that a worker may not take this holiday entitlement
whilst on sick leave, but was entitled to compensation to reflect
accrued but untaken holiday leave if their contract was terminated,
even if they were off sick for an entire year. However, the
position remains that statutory holiday entitlement cannot, under
UK law, be carried from one holiday year to the next holiday
year.
If the ECJ follows the Advocate-General's opinion, employers
will generally have to pay higher termination costs than has been
the case to date where an employee, who has been on long-term sick
leave, is dismissed or resigns.
For more information or advice, please contact
Ray
Silverstein or Louisa James.