Mother Dismissed for Absenteeism Wins Tribunal Claims

A call-centre worker who was dismissed for gross misconduct after she was absent from work when her baby daughter was in hospital has won her claims of sex discrimination and unfair dismissal (Van Heeswyk v One Call Insurance Services Limited).

Annie Van Heeswyk worked for One Call Insurance Services Limited. After her return from maternity leave she had applied to her employer for parental leave, so that she could spend time with her baby daughter and her soldier husband, who was on leave having served in Afghanistan. The child had been unwell and Mrs Van Heeswyk had previously taken time off work to be with her when she was undergoing hospital treatment. The request was denied, however, on the basis that ‘spending time together as a family didn’t qualify as parental leave’.

Shortly afterwards, Mrs Van Heeswyk, who had an excellent work record and had received no earlier warnings, was asked to attend a disciplinary hearing on account of ‘persistent absenteeism’ and ‘unsatisfactory standards or output of work’. She was subsequently dismissed for gross misconduct, even though it was understood that her absence from work had been linked to her daughter’s stay in hospital. Her employer found her explanation unsatisfactory on the basis that ‘children get ill all the time’.

Mrs Van Heeswyk brought claims of sex discrimination, unfair dismissal and unreasonable refusal to allow parental leave as well as a further claim for unlawful deduction of wages as she had been denied a pay rise of £2,000 a year to which she was entitled after she had completed two years’ service.

In upholding her claims, the Employment Tribunal described her employer’s behaviour towards her since her return from maternity leave as ‘unsympathetic’ and was of the view that the company was ‘scraping the barrel’ in order to find reasons to dismiss her.

Unpaid parental leave is a separate right from Shared Parental Leave. Parents who meet the 12-month continuous employment qualification can each take up to 18 weeks’ unpaid leave at any time up to the child’s 18th birthday in order to look after a child’s welfare. Employees are obliged to give their employer 21 days’ notice and no more than four weeks can be taken in any one year, unless the employer agrees otherwise. Leave must be taken in blocks of one week, unless the employer is happy to vary the rule or the child is disabled. Further information can be found on the website of the Advisory, Conciliation and Arbitration Service.

If you would like to discuss any aspect of employment Law contact Tracey Waite on 01235 521920 or alternatively email tracey.waite@slade-legal.co.uk.  Slade Legal Employment Law & HR Services.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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Fit for Work

Employers are reminded that, as of 22 July 2015, GPs across England and Wales can make referrals to the Fit for Work service, so you may be contacted by the service regarding a member of staff who is absent on sick leave. The intention is that employers will be able to make referrals to the service later in the year, once the GP referral system is well established.

The aim of the Fit for Work service is to improve the management of sickness absence by helping employees return to work after a period of sick leave, thereby improving business productivity and reducing the cost to the taxpayer in state benefits.

Under the free scheme, employees on sick leave who are reasonably likely to be able to return to work within three months and who have given their consent will be provided with an occupational health assessment when they reach, or are expected to reach, more than four weeks’ absence. After an employee has been referred to the service by their GP, a case manager will support them through the assessment process and, with their permission, liaise with their employer to ensure that their level of need and the appropriate steps necessary to enable them to return to work are correctly identified. Based on this information, a personalised ‘Return to Work Plan’ will be produced. A Return to Work Plan will remove the need for an employee to obtain a fit note from their GP, unless they remain off work after they have been discharged from Fit for Work.

Employees are not obliged to cooperate with the service, which could frustrate its aims and lessen its effectiveness. Its success will also depend on the case manager having a clear understanding of the employee’s work and making recommendations for a return to work that are realistic in the circumstances. Whilst employers are not legally obliged to comply with the recommendations in the Return to Work Plan, a failure to do so in the case of a disabled employee could be regarded as a failure to comply with the duty to make reasonable adjustments that would enable the employee to carry out their duties without being at a disadvantage compared with other employees, and thereby result in a claim of disability discrimination.

On 1 January 2015, the Government introduced an exemption from Income Tax and National Insurance Contributions of up to £500 per year per employee on medical treatments recommended in order to help an employee return to work. This applies to treatments recommended by health professionals within Fit for Work and by health professionals within employer-arranged occupational health services.

Separate guidance on the new system for employers, employees and GPs can be found on the Fit for Work website. In addition, more general advice is available to anyone requiring work-related health advice on the website or via a telephone advice line – 0800 032 6235.

Employers are advised to update sickness absence policies to reflect these changes and to inform staff of how the Fit for Work scheme will operate.
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Timothy Healy
Head of Department
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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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How Do Holiday and Sick Leave Interact? Tribunal Gives Guidance

The interaction between sick leave and annual holiday leave poses a tricky problem for employers. In Plumb v Duncan Print Group Limited, the Employment Appeal Tribunal (EAT) has clarified the position for employees who have to take prolonged periods off work for medical reasons with regard to the basic four weeks’ statutory holiday entitlement guaranteed under the European Working Time Directive (WTD).

Mr Plumb started working for Duncan Print Group as a printer in November 1987. In April 2010, he sustained an injury at work and was on sick leave for more than three years. He did not take holiday leave during those years and, after his employment was terminated in February 2014, he sought payment in lieu of those entitlements. His leave year ran from 1 February to 31 January.

The Employment Tribunal (ET) dismissed his claim on the basis that he could not show that he was unable, by reason of his medical condition, to take annual leave.

In allowing Mr Plumb’s appeal, the EAT identified a mismatch between the Working Time Regulations 1998 (WTR) and the WTD, which they implement into UK law. Under Article 7 of the WTD, an employee who is on sick leave, and who would be permitted to take paid annual leave during that sick leave, is not required to take annual leave but may choose to do so. The ET had erred in concluding that Mr Plumb was required to demonstrate that he had been medically incapable of taking holiday leave in order to carry forward his annual leave entitlement. Having decided not to take the leave, he was entitled to do so at a later date. Regulation 13(9) of the WTR, which provides that annual leave may only be taken in the leave year in respect of which it is due, must be interpreted accordingly in order to give effect to the WTD.

The EAT acknowledged that the WTD did not confer an unlimited right on sick workers to carry over periods of annual leave to subsequent years. However, in interpreting the WTR in conformity with the WTD, it found that employees on sick leave are entitled to take holiday leave within 18 months of the end of the year in which the entitlement to that leave accrued.

In this case, Mr Plumb was entitled to payment in lieu of annual leave in respect of the 1 February 2012 to 31 January 2013 leave year but not for the leave years 1 February 2010 to 31 January 2011 or 1 February 2011 to 31 January 2012. The matter of the precise amount of the payment was remitted to the ET for determination in the light of the EAT’s judgment.

Both parties were granted leave to appeal to the Court of Appeal.

Disputes concerning holiday pay entitlement are common. For clarity on the applicable law, contact us.
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Timothy Healy
Head of Department
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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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Child Welfare Prevails in Overseas Relocation Dispute

The welfare of children is always of paramount importance in family cases and the Court of Appeal has emphasised the point in a case in which a mother sought to move abroad with her 12-year-old daughter against the wishes of the girl’s father.

Following acrimonious divorce proceedings, the mother was granted permission by a judge to relocate with her daughter to her native Germany, despite the British father’s claims that the mother was ‘controlling’ and had discouraged any meaningful relationship between him and his daughter.

In allowing the father’s appeal and directing a fresh hearing of the case, the Court found that the judge had failed to take adequate account of the risk that the move abroad would erode the important paternal relationship. Insufficient weight had been given to the overriding factor of the girl’s welfare and greater emphasis should have been placed on her own wishes and feelings.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

If you would like to discuss any aspect of Family Law call Slade Legal today on 01235 521920.

www.slade-legal.co.uk

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Court Comes to Aid of Foreign Surrogacy Couple

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Anyone thinking of starting a family by entering into a foreign surrogacy arrangement should take careful note of a High Court case in which a well-meaning couple ended up in a legal tangle due to their ignorance of the law.

Twin girls were born to a surrogate mother in India after a British couple paid more than £16,000 to an agency there. They believed that they had done everything ‘by the book’ in that their names appeared on the children’s Indian birth certificates and the surrogate mother and her husband had signed the necessary consent forms required under Indian law.

The couple had carried out research on the Internet but did not realise that they were required to obtain a parental order from an English court before their status as the girls’ mother and father would be recognised. The absence of such an order meant that the surrogate mother and her husband remained the girls’ legal parents under English law.

Under the Human Fertilisation and Embryology Act 2008, such an order should have been applied for within six months of the girls’ birth, but the couple missed that deadline before they realised their mistake. However, in coming to the couple’s aid and granting a parental order, the Court put a broad interpretation on the Act and achieved an outcome in the children’s best interests.

Agreeing to waive the six-month time limit, the Court noted that the couple had acted in good faith and co-operated with the English and Indian authorities throughout. Any money which had been paid to the surrogate mother could be viewed as reasonable expenses associated with her pregnancy.

Although the couple had separated since returning to the UK with the children, they were still able to offer them a family home and the girls’ lifelong welfare demanded that the couple be formally declared their lawful parents. With the stress of the litigation behind them, it was to be hoped that the couple would reach agreement on contact arrangements with the children.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
If you would like advice on aspect of Family Law, call Slade Legal today on 012351 521920 or alternatively email enquiries@slade-legal.co.uk.
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Unexpected Death Justifies Divorce Settlement Change

One of the things that the family court seeks to do when divorce settlements are being made is to achieve finality. Where a settlement has been agreed by the court, it is normally difficult to vary it unless a significant and unpredictable event happens within a reasonable period after it was reached which undermines the reasoning on which it was based. Such a circumstance is called a ‘Barder event’, named after the leading case dealing with this sort of occurrence.

In a recent case, a very wealthy couple, who lived on a country estate, separated. The final settlement provided that the wife (who was considerably more wealthy than her husband) would pay her husband two lump sums and that neither party would have a claim against the other when this had been done. The first payment (£8.67 million) was to be made within 14 days of the court hearing and the second within 14 days of the man’s mother vacating the house she occupied on the estate.

The first payment was made and the man transferred more than £1.6 million to his mother’s solicitors to enable her to purchase a house. However, before the second tranche was payable, he committed suicide, leaving his entire estate to his three adult brothers.

The ex-wife went to court to have the order varied, arguing that her ex-husband’s death could not have been predicted and that the settlement would have been significantly different had his imminent demise been known about.

His brothers argued that the settlement was not based on their late brother’s future needs but on his entitlement to a share of the estate, and should thus remain unchanged.

The family court accepted that the event could not have been foreseen and that the husband’s award was based on his expected future needs, not on his entitlement to a share of the family wealth.

The judge then had to ask the question, “If I had been sitting in court in November 2014, knowing that the Husband was to die in less than a month, what would my award have been?”

Noting that the husband had assets of his own exceeding £2 million, the judge concluded that the appropriate settlement would have been £5 million. The second tranche of the settlement was therefore discharged and the man’s executors were ordered to repay £3.67 million from his estate to his former wife.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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Will Change Means Widower Will Lose Home

Many couples would be left scratching their heads if asked whether they own their home as ‘joint tenants’ or ‘tenants in common’. However, in one case, the distinction led to a bitter will dispute which culminated in an 82-year-old man facing financial ruin and homelessness.

Just seven days before her death from lung cancer, the man’s wife of 25 years made a new will leaving everything she owned to her son from her first marriage, including her share of the family home. She had previously held the property under a joint tenancy with her husband but, prior to making the will, she had taken steps to convert that into a tenancy in common.

Under a joint tenancy, her half of the house would have passed automatically to her husband on her death, regardless of the terms of her will. However, the effect of legally severing her half of the matrimonial home from that of her husband was that it fell into her estate and passed to her son.

Her widower challenged both the will and the severance of the joint tenancy on the grounds that she had lacked the mental capacity to make such important decisions on her deathbed and had not understood the legal effect of what she had done. He also accused her son of exerting undue influence over her. Those arguments, however, failed to convince a judge.

In rejecting the widower’s challenge to the judge’s decision, the Court of Appeal found that his case had no realistic prospect of success. Although the outcome was distressing for him, the judge’s factual findings were unassailable. The ruling has left the widower facing a six-figure legal costs bill and means that he will have to sell his home to satisfy his stepson’s inheritance.

In this case, the intent of the dying woman was considered to be clear and properly evidenced. If you own a house with someone else and are unclear as to what would happen on the death of one of you, we can advise you on your situation and how to make any changes to the ownership of your home or your wills in order to bring about the result you wish.
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Lisa McQueen
Head of Department
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The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
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