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Employment Law Bulletin

01 August 2012

Update in relation to recent Employment Law Developments

European Court of Justice rules on Swedish compulsory retirement age

In an interesting case, the European Court of Justice have recently considered the compulsory retirement age of 67 which exists in Sweden.  The issue arose in Hornfeldt v Posten Meddelande AB C-141/11.  The Court held that the rule had the legitimate aim of encouraging diversity within the labour market and encouraging the recruitment of younger workers.  Additionally, the Court found that such a compulsory age could amount to an appropriate and necessary means of achieving that aim.

Dismissal for SOSR based upon unproven allegations and reputational risk was a fair dismissal

The Court of Appeal has found in Leach v The Office of Communications (OFCOM) [2012] EWCA Civ 959 that a dismissal for ‘some other substantial reason’ was fair, notwithstanding that it was based upon a disclosure made by a third party about the employee, which amounted to an unproven allegation.  The Court of Appeal gave guidance as to how employers should approach situations of this type as well as making it clear that employment tribunals are only required under the ERA 1996 to consider whether the employer has acted fairly, not whether the employee has suffered an injustice.

Court of Appeal decides employees on long-term sick entitled to carry over accrued holidays

In NHS Leeds v Larner [2012] EWCA Civ 1034, the Court of Appeal upheld a decision of the EAT that an employee who had been on sick leave for a year was entitled to payment for unused holidays.  Following on from this case, employers should be aware that they ought to allow holidays to accrue for employees who have been on long-term sick leave and have not had the opportunity to take them.

Freelance doctor was a ‘worker’ under Section 230 of the Employment Rights Act 1996

The Court of Appeal held in The Hospital Medical Group Ltd v Westwood [2012] EWCA Civ 1005 that a doctor engaged on a self-employed basis could be regarded as being a worker for the purposes of the Employment Rights Act.  The Court emphasized that when assessing this issue it is important to distinguish between those who effectively are providing a service to the principal as a key part of the principal’s operations and those who provide services to the world at large and are likely to have clients and customers.