3. Special circumstances

Some types of sickness absence deserve special attention because the law has developed particular rules to manage particular circumstances or conditions. This chapter looks at these special circumstances. The chapter begins by reviewing the law governing sickness absence and disability, which was significantly changed by the Equality Act 2010 (EA 2010). The Act, which came into force on 1 October 2010, introduced important changes to the scope of disability discrimination as well as a new ban on pre-employment health checks. Sickness absence as a result of pregnancy and maternity are also covered by the EA 2010, although unlike disability, the basic principles remain largely untouched by the new Act.

The chapter also looks at other important developments, including new case law clarifying the position on sickness absence and IVF and introducing major changes to the law on sickness absence and annual leave. Also provided is a short summary of the rights available to help employees who need time off to manage the sickness or injury of a dependant.

Absences caused by work-related injuries are not covered by special legislation but deserve special attention and are also looked at here.

Sickness absence and disability — the law

With effect from 1 October 2010, the law governing the relationship between absence and disability is contained in the Equality Act 2010 (EA 2010).

Definition of disability

The EA 2010 has introduced important changes to the definition of disability. The core of the definition remains the same: a person has a disability where a physical or mental impairment has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. However, for a person to be disabled under the Disability Discrimination Act (DDA) 1995, the impairment needed to impact on one of a list of specified “day-to-day activities” which included mobility, manual dexterity and physical coordination. The EA 2010 has abolished this list, which was widely regarded as unnecessarily restrictive to claimants.

Those workers most likely to benefit from this change are individuals suffering from mental health problems. Under the DDA, to succeed in a claim for mental health disability, it was necessary to show that the condition had an effect on a person’s memory or ability to concentrate, learn or understand. The removal of this requirement ought to make it easier for individuals with mental health problems, such as depression, to access protection against disability discrimination.

In the recent case of J v DLA Piper (UKEAT/0263/09) the tribunal indicated that while “clinical depression” will almost always be regarded as a disability for the purpose of the legislation, “reactive depression”, in the form of the “anxiety, stress and low mood” a person suffers as a reaction to adverse circumstances such as problems at work, is less likely to qualify as a disability, although each case will continue to be examined on its own individual facts, in particular the severity of the condition.

In practice, the requirement for a condition to be “long-term” will often limit the scope for adverse reactions to life events to amount to disability. An impairment has a “long term” affect if it lasts for at least 12 months or for the rest of the individual’s life. Recurring conditions may amount to a disability even if they appear to have gone away, as long as they are likely to recur.

Some conditions, such as multiple sclerosis, HIV or cancer, are deemed to be disabilities, without the need to prove the various stages of the definition.

When deciding whether an individual is disabled, a tribunal is expected to focus on the things the claimant cannot do, or can only do with difficulty, rather than things s/he can do (Goodwin v the Patent Office [1999 ICR302]).

Union reps should be aware of the definition of disability as there are conditions which could be regarded by the law as a disability in a particular case even if the worker does not consider themself to be disabled. These include sensory impairments, fibromyalgia, epilepsy, asthma, autistic spectrum disorders, dyslexia, learning difficulties, eating disorders, chronic fatigue syndrome, obsessive compulsive disorders and some personality disorders.

In J v DLA Piper (UKEAT/0263/09), the tribunal confirmed that a patient’s GP is fully qualified to express an opinion as to whether or not that patient is suffering from depression. There is no requirement for a claimant to obtain specialist expert evidence of a mental health condition. In practice, however, great care should be taken to make sure that the expert medical evidence, whether from GP or specialist, is sufficiently clear and persuasive to provide the necessary guidance to the tribunal. This is one area where claimants frequently find themselves in difficulty.

Ban on “perception” discrimination where an employer mistakenly believes an employee to be disabled

EA 2010 makes it unlawful for the employer to treat a person worse than someone else because the employer mistakenly believes that person is disabled (known as “perception” discrimination).

For example, it would be unlawful for an employer to select a person for redundancy because of a mistaken belief that s/he has a progressive illness, such as cancer.

Pre-employment health checks

A further change introduced by the EA 2010 which will strengthen the position of disabled workers with a record of sickness absence is the ban on pre-employment questions to job applicants about their health, including whether they have a disability, and about their previous sickness absence record, before they are offered a role. Once the offer has been made, a reference request asking about a candidate’s sickness absence record is, in theory, permissible, although employers are likely to be discouraged from engaging in this practice, given the increased litigation risk. Past sickness absence is not a reliable indicator of future performance and in any event, past absence may be due to a previous employer’s failure to make reasonable adjustments.

There are exceptions to the ban:

• asking an applicant whether s/he has a disability pre-interview for the purpose of organising any reasonable adjustments for the interview process is still permissible;

• asking for information about disability for the purposes of diversity monitoring is allowed, although this information should not be available to the person carrying out the candidate selection;

• asking whether an applicant will be able to carry out a function that is intrinsic to the work (once reasonable adjustments have been put in place) is also permitted;

• where having a particular disability is a requirement of the work (for example in the context of a supported employment scheme) establishing that the candidate qualifies for the scheme is permitted; and

• health questions are permitted in the context of national security vetting.

It should be noted that this prohibition can only be enforced by the Equality and Human Rights Commission. Nevertheless, it remains a valuable tool for candidates, because if an employer is shown to have asked a prohibited question, the burden of proof in a claim for direct discrimination will then shift to the employer.

Sickness absence “arising in consequence of” a person’s disability

This section of the booklet should be read in conjunction with the guidance on sickness and dismissal set out in Chapter 4.

Section 15 of the EA 2010 introduces a new concept, namely: “discrimination because of something arising in consequence of” a person’s disability.

Under this provision, a person (A) discriminates against a disabled person (B) if s/he treats B unfavourably because of something arising in consequence of B’s disability and cannot objectively justify the treatment. A has a defence if s/he can show that s/he did not know and could not reasonably have been expected to know that B had the disability.

The most important point to note about this new provision is that a disabled person no longer has to demonstrate that his/her treatment is less favourable than that of a non-disabled person (the “comparator”). It is enough to show that the employer has treated the disabled person unfavourably because of something “arising in consequence of” that person’s disability. This provision is designed to overcome restrictions placed on disability discrimination law by a restrictive House of Lords decision, London Borough of Lewisham v Malcolm HL 2008 IRLR 700.

In the context of sickness absence, this means that a disabled person who is treated unfavourably, for example, by being dismissed as a result of their disability-related sickness absence, no longer needs to show that the employer treated them less favourably than s/he would have treated a similar but non-disabled employee who had been absent for the same length of time. Instead, it is enough to demonstrate:

• that the treatment (dismissal) is unfavourable;

• that the sickness absence is the result of the disability; and

• that the sickness absence led to the dismissal.

An employer will have a defence if they can show that the decision to dismiss can be objectively justified, as a “proportionate response to a legitimate aim”, in other words, that the employer acted reasonably in its response and made all reasonable adjustments before deciding that dismissal was the only remaining option. In practice, employers are likely to have a high mountain to climb when deciding to dismiss a disabled employee on long-term sickness absence, and disabled employees at risk of dismissal arising out of long-term sickness absence are better protected as a result of this change.

Sickness absence and the duty to make reasonable adjustments

The important “duty to make reasonable adjustments” has not been significantly changed by the EA 2010. The duty is triggered where, in comparison with non-disabled persons:

• a “provision, criterion or practice or a physical feature” puts a disabled person at a substantial disadvantage compared with non-disabled people; or

• a disabled person would, but for the presence of an auxiliary aid, be put at a substantial disadvantage.

The reference to “auxiliary aids” is new. Although not defined in the Act, it is likely to include, for example, specialist computer software, a hearing loop, or a specially designed chair. Employer funding and support with advice on auxiliary aids is available through the Access to Work scheme (www.directgov.org.uk).

The duty to make reasonable adjustments is key to the protection offered to the disabled in the context of sickness absence. ”Provision, criterion or practice” has a broad meaning, and can include, for example:

• absence management procedures;

• sick pay policies;

• redundancy selection matrices that award points for attendance;

• company policies on the giving of references that refer to an individual’s sickness record; and

• redundancy selection matrices that award points for skill levels, training or competencies, where access to training has been limited by an individual’s sickness absence (Electronic Data Systems v Travis [2004] AER 142).

The employer is under no duty to make reasonable adjustments if s/he does not know and cannot reasonably be expected to know that a worker has a disability.

Consequently, although a worker taking sick leave is not obliged to tell the employer in writing that s/he is disabled, clearly this would be sensible in order to obtain the benefit of any adjustments. (See also the discussion on the new Fit Note in Chapter 1, and the review of the law governing dismissals for long term sickness absence in Chapter 4).

There is detailed guidance on “reasonable adjustments” in the Code of Practice on Employment and Occupation published by the Disability Rights Commission in 2004. This Code remains in force following the EA 2010 and can be downloaded from the website of the Equality and Human Rights Commission (www.equalityhumanrights.com).

Not only cases of long-term absence should alert reps to a disability issue. Frequent short-term absences may also result from a disability.

Sick pay entitlement and disability

The duty to make reasonable adjustments will only very rarely extend to a duty to adjust a sick pay policy to make more generous payments to a disabled than to a non-disabled employee. (O’Hanlon v Commissioners for HMRC [2007] EWCA Civ 283). However, it might be a reasonable adjustment to pay full pay to a worker who has been prevented from returning to work by the employer’s failure to make reasonable adjustments (Nottinghamshire CC v Meikle [2004] EWCA Civ 859 ([2004] IRLR 703)). A rep told LRD of such an experience where a university had failed to make adjustments in time for an employee before her full sick pay ran out. The university did go on to rectify it.

“Associative discrimination”

“Associative discrimination” is absence as a result of someone else’s disability. Under the EA 2010, direct discrimination occurs when “because of a protected characteristic” such as disability, A treats B less favourably than A “treats or would treat others”. One planned result of this deliberately wide choice of words is that protection against discrimination is no longer limited to detrimental treatment connected to the worker’s own disability. Instead, it now extends to treatment suffered as a result of the disability of a third party, such as a child with whom the worker is associated, producing a new category of claim known as “associative discrimination”.

This change reflects the decision of the European Court of Justice in Coleman v Attridge Law [2008] IRLR 722. However, there are a number of important points to note that may limit the practical impact of this new right:

• Associative discrimination requires the worker to point to a comparator (real or hypothetical) in similar circumstances, who does not share the protected characteristic and who as a result, is not suffering the discrimination. In the context of sickness absence, this means that a non-disabled claimant wanting to enforce this new right must be able to show that a similar worker, with a similar absence record, but whose absence is not the result of another person’s disability, would not have been treated unfavourably. This is likely to be very difficult. Contrast the new category of discrimination “arising in consequence of” a person’s disability, summarised above, where no comparator is required, and where the worker only needs to show that the treatment was as a result of his or her own disability and was “unfavourable”, without the need to show that somebody else with that absence record would have been treated differently.

• To succeed in a claim for associative discrimination, the claimant must be able to show that the less favourable treatment was because of a third party’s disability. For example, in Coleman v Attridge Law, the claimant was a secretary in a law firm who argued that the law firm’s partners harassed her because of her son’s particular disability. In most cases, this sort of factual link is likely, in practice, to be extremely hard to establish.

• The “duty to make reasonable adjustments” to an employee’s working conditions (such as changing working hours) is owed only to a disabled worker. It is not owed to a non-disabled worker who “associates“ with a disabled person, for example in the role of carer. An employee who wants more flexible work arrangements because of another’s disability should make an application to work flexibly, or where appropriate, should take “dependant leave” or apply for “parental leave”. These “family-friendly” rights are available only to employees and not workers. They are briefly summarised at the end of this chapter under the heading “Managing the sickness absence of a dependant” and further guidance on how to exercise these rights can be found at www.direct.gov.uk.

Sickness absence and indirect discrimination

Reps should note that the EA 2010 also introduces a new potential claim for indirect disability discrimination. Indirect discrimination occurs where a particular policy puts a group that shares a common characteristic, such as sex or race, at a particular disadvantage when compared with those who do not share that characteristic.

Many commentators have suggested that “indirect discrimination” has no role to play in tackling disability. This is because indirect discrimination requires a claimant to demonstrate that their particular disadvantage affects others who share their condition “as a class”. This is not appropriate in the case of disability, because a disability is likely to affect different people in many different ways. For this reason, those who originally framed the DDA developed a unique approach which focuses on improving the position of each individual disabled person, through the duty to make reasonable adjustments. As explained above, the law on “reasonable adjustments” remains basically unchanged by the EA 2010.

Pregnancy-related sickness

Time off for ante-natal care

The right to reasonable time off for ante-natal care currently extends only to employees and not workers.

Employees have the right to reasonable paid time off during working hours for ante-natal appointments made on the advice of a medical practitioner, registered mid-wife or registered health visitor and requests should not be unreasonably refused. Except for the first appointment, the employer is allowed to ask for proof, such as an appointment card, showing that the appointment has been made. This time off should not form part of a sickness absence record.

The Agency Workers Regulations 2010 (SI2010/93) (AW Regs) are due to come into effect on 1 October 2011, and the coalition government has announced its intention to bring them into law without making any changes. Once implemented, the AW Regs will extend the right to time off for ante-natal care to agency workers, by providing a new right for a pregnant agency worker to take time off from her working hours, paid by the agency at the hourly rate for the relevant assignment. To trigger the entitlement to paid time off, the agency worker must have worked for the agency for 12 continuous weeks. The AW Regs will contain rules for the calculation of this 12 week period.

Discrimination on grounds of pregnancy and maternity

With effect from 1 October 2010, the law protecting women from discrimination on grounds of pregnancy and maternity leave is contained in the EA 2010. However, although the source of the law has changed, there has been no significant change to the basic legal rules.

A woman is protected against discrimination on grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled.

Dismissal or other discrimination due to pregnancy and related reasons such as pregnancy-related sickness is automatically unfair.

An employer must not take into account a period of absence due to pregnancy-related illness or maternity leave, when making any decision about a woman’s employment, for example, for disciplinary purposes or if selecting workers for redundancy. Sickness absence associated with a miscarriage should be treated as pregnancy-related illness. Pregnancy-related absences should be recorded separately from other kinds of illness.

Many policies obtained by LRD specifically excluded all pregnancy-related absences from the sickness absence procedures, but not all did. One union rep complained of insensitive treatment at a further education college where a woman who had been off sick as a result of an ectopic pregnancy was called to a meeting with HR to explain her absence.

Sick pay and pregnancy

An employer should not pay a woman who is absent for a pregnancy-related illness less than the contractual sick pay she would have received if she was absent for any other illness with a Statement of Fitness to Work (Fit Note). However, women who are absent as a result of a pregnancy-related illness are not entitled to better sick pay provisions than workers who are off-sick for reasons that do not relate to pregnancy. Sick pay should be calculated in the same way as if she were absent for a non-pregnancy related illness (North Western Health Board v McKenna case C-191/03 [2005] IRLR 895).

A woman who suffers from an illness or injury whilst on maternity leave is not entitled to receive contractual sick pay, even where the contract provides for contractual sick pay but only statutory maternity pay (Gillespie v Northern Health and Social Services Board (No. 2) [1996 IRLR 214 ECJ).

Medical suspensions relating to pregnancy and childbirth

Medical suspension relating to pregnancy and childbirth is governed by the Management of Health and Safety at Work (Amendment) Regulations 1999, which implement the health and safety provisions of the Pregnant Workers Directive. There is guidance available from the HSE at www.hse.gov.uk.

Employers have a general duty to assess risks to all their employees and to do what is reasonably practicable to control those risks, including risks to new and expectant mothers. When an employer receives written notice from the employee that she is pregnant, has given birth within the previous six months or is breastfeeding, the employer must conduct a specific risk assessment. The assessment must take into account any advice provided by the woman’s GP or midwife. The assessment need not be in writing. Where a risk cannot be avoided, the employer must change the woman’s working conditions or hours of work. If this is not reasonable or would fail to remove the risk, the employer must suspend the woman from work for as long as necessary.

It would be sex discrimination to impose a change of duties or a suspension on a woman where the level of risk is low and does not require this (New Southern Railway Limited v Quinn [2006] IRLR 266). In that case, the male managers jumped to stereotypical “patronising and paternalistic” conclusions as to the level of risk to a pregnant station manager, without focusing on whether the perceived risks were genuine or imagined, or on the practical steps that could be taken to reduce those risks.

A woman is entitled to be paid her normal wages during a medical suspension unless she has turned down an offer of suitable alternative work. The alternative work must be both suitable for the woman and appropriate for her to do in the circumstances, and on terms and conditions no less favourable than her normal terms and conditions.

The hazards to new and expectant mothers identified by the HSE include awkward spaces and workstations, vibration, noise, radiation, infections, chemical handling (handling drugs or specific chemicals such as pesticides, lead and so on), inadequate facilities (including rest rooms), excessive working hours (such as night work), unusually stressful work, exposure to cigarette smoke, high or low temperatures, lone working, work at heights, travelling and exposure to violence.

Where a woman is suspended without pay, she may claim her pay from an Employment Tribunal. The claim should be brought within three months of the date the suspension started. It is automatically unfair to dismiss or subject to a detriment a woman because of her entitlement to a medical suspension, or to dismiss a woman who refuses to work in a situation which she reasonably believes may represent serious and imminent danger.

The right to a medical suspension is currently only available to employees and not workers. However, the AW Regs, which are scheduled to become law on 1 October 2011, will extend the right to a medical suspension to agency workers who have completed the “qualifying period” under the Regulations. An agency worker will then have the right to be placed on medical suspension on maternity grounds when health and safety prevents the assignment from continuing. Where this occurs, the agency will be obliged to provide an alternative assignment, or to pay the worker for the likely duration of the original assignment.

IVF

Dismissal or less favourable treatment of a female worker because she is undergoing the advanced stage of IVF treatment — between the retrieval of the eggs and the imminent transfer of the fertilised ova into the uterus — amounts to direct sex discrimination without the need for a comparison with how a man would have been treated (Mayr v Bäckerei und Konditorei Gerhard Flöckner ECJ 2008).

In Sahota v The Home Office and Pipkin (UKEAT/0342/09) the EAT refused to extend protection against discrimination generally to all women undergoing IVF treatment where the ovum has not yet implanted or where an implantation has failed. One reason for the refusal to cover any stage or form of IVF treatment is that the hormonal treatment leading up to egg retrieval can take many months. In addition, ova may be taken and then stored for a very long time, possibly years. The analogy with pregnancy protection will only arise in relation to the puncture and imminent use of the fertilised ova.

In cases of alleged discrimination before the advanced stage of IVF treatment, for example during unsuccessful IVF cycles, less favourable treatment on account of absence will not amount to sex discrimination if a male worker would have been treated in the same way.

Injuries at work

Although employers have a duty to safeguard their workers’ health and safety at work, and can be liable to pay compensation if their negligence has led to a workplace injury, a worker who is off sick as a result of an accident or work-induced injury has no greater legal rights in terms of sick pay.

And the law says that an employer can fairly dismiss an employee who becomes incapable of doing their work even when the employment has caused the injury. In such circumstances, the worker would have to pursue a personal injury claim for compensation. See Chapter 5 for a discussion of case law concerning the dismissal of workers injured by their employer.

This lack of legal protection means that it is especially important that unions negotiate an agreement for work-related injuries, which should be disregarded for the purposes of sickness absence reviews. Work-related stress was highlighted as a particular issue by one workplace rep, who reported to LRD that he supported a successful claim through the grievance procedure that secured normal wages for a worker in place of sick pay, on the basis that the stress was caused by work.

A number of workplace policies provided to LRD contain specific provisions for work-related injuries or illnesses. These typically provide separate provisions governing the pay of workers injured at work, so that it does not come out of their normal sick pay entitlement, and state that the absence will be disregarded for monitoring purposes.

A worker suffering an accident or injury at work may qualify for benefits such as the Industrial Injuries Disablement Benefit and other benefits related to workplace injury or illness. Further information can be found at: www.direct.gov.uk.

Holidays

The law on paid holiday and sickness absence has changed significantly in recent years as a result of some important European Court decisions. Most of the changes have been in favour of workers as opposed to employers. However, the law is complex and important issues remain uncertain.

The two most important decisions are the decision of the House of Lords in Her Majesty’s Revenue and Customs (Respondents) v Stringer and others (Appellants) [2009] UKHL 31 and Pereda v Madrid Movilidad SA Case C-277/08 of the European Court of Justice. Both cases concern the impact of the Working Time Directive (Directive 2003/88/EC) and the Working Time Regulations 1988 (SI No.1833) (the WT Regs). The WT Regs cover both employees and workers.

Here is a summary of the key effects of the Stringer and Pereda decisions:

Holiday and long term sickness absence

The key points are:

• a worker continues to build up annual leave whilst off sick;

• a worker can choose between taking paid holiday whilst off sick and saving it up to take when he returns to work. Taking paid holiday during sickness absence might be a particularly sensible option where contractual sick pay has run out; and

• an employer cannot force a worker to take paid holiday whilst off sick.

Carrying forward holiday into a later holiday year

A worker who, because of sickness, does not have the opportunity to take statutory holiday during the holiday year (either because the sickness absence lasts for the whole year, or because the worker saves up his holiday to take later in the holiday year and then falls ill before having the chance to take it) must be allowed to carry that unused holiday forward into the next holiday year, even if the employment contract expressly forbids this.

A typical “use it or lose it” holiday clause will state that holiday that remains unused at the end of the holiday year is lost. This kind of contract term cannot in future be used to prevent workers carrying forward their holiday where they have been unable to take holiday due to sickness. It can, however, still be used in contracts of employment to prevent healthy workers carrying forward their unused holiday entitlement (Lyons v Mitie Security Ltd [2010] UKEAT/81/09).

The situation in relation to annual leave and maternity leave remains unclear.

A worker whose continuous long term sickness spans more than one holiday year can potentially build up holiday entitlement over the entire period.

Payment for unused holiday on termination of the employment

If a period of long term sickness absence ends with the termination of the employment, the worker must be paid for the whole of their unused holiday entitlement, even if they have been off sick for the whole of the holiday year and beyond, as long as the absence was continuous.

Payment for unused statutory holiday entitlement is only allowed on termination of the employment.

Falling ill whilst on holiday

The key points are:

• if a worker falls ill, either before starting a pre-booked holiday or whilst on holiday, s/he is entitled to treat the days on which s/he is sick as sickness absence, and to re-schedule the holiday to take when s/he is fit; and

• an employer is entitled to refuse particular holiday dates, but must allow the worker to carry forward the annual leave if it is not possible to accommodate the request.

Sick pay policies and holiday

To be paid contractual, as opposed to statutory sick pay, employers are entitled to insist on a GP certificate or Fit Note. Many employers are changing their sick pay policies to spell out that where a worker claims to have been taken ill whilst on holiday, even for one day, a GP certificate, Fit Note or other evidence of incapacity must be produced in order to receive contractual sick pay.

Where a charge is made to provide medical proof of incapacity whilst on holiday, employers are entitled to require the worker to pay that cost.

Some employers have been changing their rules on sick pay entitlement to state that only statutory sick pay, as opposed to any more generous contractual sick pay, will be paid for absences whilst on pre-booked annual leave.

Time limits for bringing claims for holiday pay

Claims must be brought promptly to the Employment Tribunal. The usual three month time limit for bringing claims applies. However, as with every aspect of these new changes to the law, the position is complex. A worker with a claim for holiday pay can usually choose between using the enforcement provisions of the WT Regs and bringing a claim for unlawful deduction of wages under Part II of the ERA 1996. However, the limitation rules for a claim for unlawful deduction of wages offer scope for a larger claim, depending on the facts of each case, potentially covering a much longer period of absence. Since this issue is complicated, workers wishing to make a claim should seek advice from their union.

Other implications

Many employers have been re-drawing their sickness absence policies to take account of the changes. Some employers are reported to be taking a more robust approach to the management of long-term sickness absence as a result of these changes, since in some cases, they represent a significant unanticipated on-going extra cost. Employers with generous permanent health insurance packages are facing particular difficulties as a result of these decisions.

The WT Regs entitle workers to 28 days of annual holiday, inclusive of bank holidays. This is known as the “statutory holiday” entitlement. The rulings in Stringer and Pereda only apply to statutory holiday under the WT Regs. Where workers have a contractual entitlement to sick pay that exceeds statutory holiday, employers are free to agree different treatment of the “extra” non-statutory element of the holiday. However, the administrative costs of treating the two types of holiday separately may deter employers from differentiating in this way.

Must workers ask to take their holiday whilst on sick leave?

One of the outstanding unresolved questions is whether the worker needs to have asked to take annual leave whilst on sick leave, in order to be able to bring a claim. Trade union reps should make sure employees on long-term sick leave engage effectively with their employer and ask to take their holiday — either during their sickness absence, or upon the return to work — perhaps as part of a phased return to work programme.

Taking holiday is entirely consistent with being off work with sickness or injury and can play an important rehabilitative role.

An employee planning a return to work following long term sickness absence should make arrangements in writing with the employer, without delay, to agree dates for unused holiday. The legal basis for allowing an employee who is off sick over a continuous period to carry forward holiday is that whilst off sick, s/he has not had the “opportunity” to take that holiday. As soon as s/he is back at work, s/he will have that “opportunity”.

As a result, if s/he does not make a prompt request to take the holiday, there is a risk that s/he will become barred from bringing a claim for unused holiday that built up during earlier holiday years because of the short time limits for Employment Tribunal claims. It is important to address this issue promptly, seeking advice if necessary.

Managing the sickness of a dependant

This section looks briefly at the rights that are available to workers who have to take time off to manage not their own sickness or injury, but that of a dependant. Note that none of the rights listed below are available to agency workers. This situation will not change as a result of the Agency Workers Regulations when these come into effect on 1 October 2011. Further information about these rights can be found in LRD’s publication Law at Work 2010.

Dependant leave

Dependant leave is reasonable unpaid time off under the Employment Rights Act 1996 ERA section 57A(1)) to take action necessary to deal with unexpected incidents relating to the care of dependants, for example, to make care arrangements for a dependant who is ill or injured. It is automatically unfair to dismiss an employee for taking or seeking to take dependant leave. There is no minimum “service” requirement for the right to take dependant leave. However, the right is subject to some important qualifications:

• It does not extend to a right to provide the care personally, beyond the reasonable amount necessary to deal with the immediate crisis (Qua v John Ford Morrison Solicitors [2003] IRLR184). It is not designed to allow the carer to provide the care his or herself, but instead to make arrangements for a third party to provide care. Although not restricted only to “emergencies”, in practice the more notice the employee has of the disruption, the less likely the request for time off is to be considered “reasonable”.

• If the dependant has an underlying medical condition that is likely to cause regular relapses, the situation is unlikely to be covered, on the basis that the absence is not “unexpected”.

• The employee must comply with the notification requirements in the Act. In particular, s/he must tell the employer, as soon as reasonably practicable, how long s/he expects to be absent and why.

• What is “reasonable” will depend on individual circumstances, but whilst the employer is entitled to take account of the number, length and dates of previous absences, it is not entitled to take account of disruption to the business.

A 2010 unreported case against the Royal Mail illustrates the potential scope of the right to claim dependant leave in this context:

The claimant, Ms Batch, was dismissed after taking time off seven times during her six month trial period, to care for her son. The tribunal ruled that the dismissal was unfair as she received no formal warning about her attendance before being dismissed. As a new employee, she should have been given a performance review after three months but this did not happen, and she was not aware of concerns about her attendance until she met with her manager for her six monthly assessment. Shortly after this meeting she was dismissed and given one week’s notice, despite explaining at the meeting that her five year old son had health problems. According to press reports of the tribunal hearing, the Royal Mail’s attendance procedures were criticised for failing to mention time off for dependants. Ms Batch was awarded £8,700 of compensation for automatically unfair dismissal.

Parental leave

An employee with a year’s service can make a request for parental leave to deal, for example, with the illness or injury of a dependant child, provided the child is under the age of five (or eighteen, if the child is receiving disability living allowance). Parental leave is unpaid and is limited to a maximum of 13 weeks per child (and a maximum of four weeks for an individual child in any one year). There are rules governing how and when to make the request, and these must be followed.

Flexible working

An employee with a more long term need to make arrangements to care for a sick or injured dependant may need to consider an application to vary his or her working hours, through a formal application for flexible working.

At the same time as the case law on associative discrimination was developing in the European Court (see above), the government was extending the rights to carers for dependant children and adults to request flexible working arrangements. At the time of writing, eligible employees with at least 26 weeks’ service and children under 17 (or registered disabled children under 18) are entitled to make a request.

In April 2011, the right to request flexible working is to be extended to all employees with dependant children under the age of 18, and the coalition government intends to consult on extending the right to request flexible working to all employees. In practice, the right to make a flexible working request, combined with the protection against associative discrimination provided by the EA 2010, ought to significantly strengthen the hand of carers who need to negotiate special arrangements to care for disabled dependants.

Please note that a change to contractual arrangements made as a result of a flexible working application will be permanent unless otherwise agreed by the parties.