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The year ahead: spot the issues that could lead to tribunal claims

Age discrimination is among several reasons for tribunal claims that may come to the fore in 2010. Last year over 260,000 claims were brought to tribunal, where even a successful defence costs an employer thousand of pounds. Minimising employee action remains the best defence for employers, and below are my pick of tribunal subjects HR professionals should be prepared for next year.

Holiday pay

Following a series of domestic and European Court decisions, we can expect the Government to amend the Working Time Regulations to make it clear that all employees are entitled to accrue statutory holidays while on sick leave. This right already applies to public-sector staff. Employees can also elect to postpone their annual leave if it coincides with a period of ill health. Employers might therefore face claims for sick pay from employees and requests to rearrange holidays from those who have suffered flu, food poisoning or even severe sunburn while on an exotic holiday.

What can be done to protect against this situation? First and foremost you should review your relevant policies and procedures. For example, make it clear that the usual notification arrangements apply (including medical certificates) even if the employee falls sick while on holiday abroad. Where sick pay is discretionary, make it clear that only statutory sick pay (SSP) will be paid if an employee elects to take sick leave instead of annual leave. Also ensure that employment contracts make it clear annual leave cannot be carried over from one leave year to the next - in a recent case the Employment Appeal Tribunal allowed an employee to claim holiday pay over seven years because of the particular terms under which she was employed.

Religion and belief

A number of discrimination claims by practising Christians have failed over recent months. Yet a senior executive at one of the UK's largest listed residential landlords recently successfully argued that strongly held environmental beliefs are covered by the regulations on religion or belief discrimination.

Next year may well hold similar surprises. The case shows that an employee does not need to hold obviously religious convictions to qualify for protection. On the other hand, the fact that someone is openly Christian does not mean that any adverse treatment is necessarily discriminatory even if their religion is part of the equation. As is so often the case with employment law, nothing is straightforward and sorting out doubt sooner rather than later can avoid small issues turning in to expensive ones.

Industrial action

Strikes, working to rule and the like are often characterised as a disease of the 1970s. They have been less prevalent in the past couple of decades but the most recent exception is a significant one - the Post Office dispute.

The expected substantial cuts in public spending after next year's general election could well fuel discontent. Job cuts in the public sector seem unavoidable. The reduction in public spending is likely to have a knock-on effect with private-sector employers. Both industrial action and yet more redundancies cannot be ruled out. If large-scale redundancies are still on the cards, employers must make sure their dismissal procedures are up-to-date and followed to the letter. With over 11,000 cases resulting from ‘failure to inform and consult' over redundancy last year, this cannot be over-emphasised.

Fit notes

From April next year, GPs will be able to certify patients not only as fit or unfit but alternatively as partially fit to return to work. In doing so the GP has to specify the kind of duties the individual should be capable of performing.

It is questionable whether GPs are in fact appropriately qualified to make this kind of judgment especially when most GP appointments are scheduled to last only a matter of minutes. Employers will have to take careful account of these fit notes in deciding whether a given individual may be disabled or incapable of performing the job for which they are employed. We see plenty of scope for a conflict, with employers feeling forced to accept an early return to work. Fit notes should not be relied upon instead of an expert occupational health review of an individual's condition and capability when looking, for example, at reasonable adjustments or possible capability dismissal. 

If I were a betting man, these would be the talked-about tribunal topics for 2010. There will no doubt be surprises in store, but employers that spot these issues early will keep claims, and surprises, to a minimum next year.

James Wilders is a partner in the employment team at national law firm Dickinson Dees