Here is a summary of some recent cases that will be of interest to employers:
Death-in-service benefit recoverable by deceased former employee’s estate: The EAT has held that the dependants of an employee – who died just a few days after he was dismissed by his employer – could claim the loss of the death-in-service benefit (amounting to £85,000) which would have been provided had he died during his employment. Mr Fox was dismissed for incapability following long-term sickness absence. Five days after his dismissal he had surgery, which he hoped would allow him to return to work; however, he died three weeks later. An employment tribunal awarded a nominal sum of £350 to Mr Fox’s estate, but Mr Fox’s father (representing his late son’s estate) appealed against the decision not to award the full death-in-service sum.
The EAT overturned the tribunal’s decision, finding that the loss of the death-in-service benefit was a real loss of substance to Mr Fox, and that the loss could only be quantified by awarding the full sum payable on death. (Fox v British Airways plc, UKEAT/0033/12; 30 July 2012).
Constructive dismissal: employers may prevent a breach of trust and confidence by making amends for the mistreatment of an employee: Mr Assamoi, a kitchen worker at a pub company, raised a grievance against his immediate manager following various disputes that had arisen between them. A senior manager realised that Mr Assamoi had been unfairly treated by his immediate manager and upheld his grievance. The senior manager then took steps to rectify the situation, but Mr Assamoi resigned and brought an unfair dismissal claim. The employment tribunal dismissed Mr Assamoi’s claim, but he appealed.
The EAT agreed that Mr Assamoi’s immediate manager had treated him badly. However, it also found that the treatment was not sufficient to amount to a breach of the implied term of mutual trust and confidence. The senior manager had tried to remedy the situation and, thus, had prevented the matter from escalating into a breach of the implied term, which would have justified Mr Assamoi’s resignation and subsequent claim of constructive dismissal.
This ruling shows that if employers investigate employee complaints of mistreatment and take appropriate action, a claim for constructive unfair dismissal can be avoided (Assamoi v Spirit Pub Company (Services) Ltd UKEAT/0050/11; 30 July 2012).
Failure to request holiday leave does not affect a sick worker’s right to carry-over holiday to the following year: The Court of Appeal has upheld an employment tribunal ruling that a clerical worker, Mrs Larner, who had been on sick leave for an entire annual leave year and had not taken any holiday during that period, was entitled to payment in respect of that year’s unused statutory holiday entitlement on the termination of her employment. Mrs Larner’s failure to request any holiday, or to ask for it to be carried forward during the previous annual leave year, did not mean that she had lost the right to payment. Although there is no right to carry over holiday in the Working Time Regulations, public sector workers (such as Mrs Larner) can rely on EU law to this effect. However, the Court of Appeal ruled that private sector workers can have the same rights.
The ruling shows that employers should allow a worker to carry over their accrued holiday if they have been on long-term sick leave and have not had the opportunity to take that holiday. (NHS Leeds v Larner  EWCA Civ 1034; 25 July 2012).
If you have any concerns regarding any of the issues raised, or want to discuss anything else employment-related, please contact me at firstname.lastname@example.org.