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October 2007 |
Welcome to the latest edition of the Employment Law Update brought to you by the employment team at Russell-Cooke. The aim of this service is to keep you informed of recent developments in this fast moving field of law so that you are better prepared to deal with issues as they arise in your workplace and recognise when professional advice might be required. Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or indeed about any employment law related matter please do not hesitate to get in touch.
DISABILITY DISCRIMINATION
The definition of disability under the Disability Discrimination Acts requires a person to suffer a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities. In a recent EAT case, the definition of day-to-day activities was widened. Previously it was understood to be the case that to satisfy the above test, an individual with a disability would be compared with an ordinary, average member of the population. However following this case, it was determined that a comparison should be drawn between what the disabled individual can do and what they could do without the disability. In this case a senior police officer discovered he had dyslexia. He brought a claim for disability discrimination on the basis that his employers had failed to make sufficient reasonable adjustments to take account of his disability, particularly in light of a further promotion to superintendent which required the completion of a promotion assessment. The question was whether the dyslexia had a substantial adverse impact on his day-to-day activities and whether the assessment was a normal day-to-day activity within the meaning of the Act. The EAT found that despite the fact that the employee had shown he could achieve a senior position in the organisation and could write reports and carry out financial and budgetary duties, the impairment had more than a trivial effect on his ability to carry out normal day-to-day tasks. As a result of the dyslexia, reading and comprehension was more difficult. Also, the impairment became more marked as he became more senior. In this regard the EAT held that it was important to take into account the individual’s professional activities in deciding whether or not the impairment had a substantial adverse impact on a individuals normal day-to-day activities. Therefore, it found that the assessment was a normal day-to-day activity This case serves as a useful reminder of the courts’ willingness to define the scope of the disability discrimination legislation widely to enable employees to obtain the protection of the legislation. Even if assessments and examinations are not part of an employee’s day to day job, they will still be deemed to be day-to-day activities within the meaning of the Act. [Paterson v the Commissioner of Police of the Metropolis [2007] IRLR 752, EAT]
UNLAWFUL DEDUCTION FROM WAGES
An employment contract is based on a reciprocal relationship between the employer and employee. If the employee refuses to comply with the employer’s reasonable requirements and as a result refuses to work, then the employer can refuse to pay the employee. In a case recently heard by the Court of Appeal, an employee refused to return to her place of work until grievances that she brought against her employer had been fully investigated. Following a full independent investigation, all but one of the allegations were rejected. The report contained an action plan to return the employee back to work. The employer took the view that in order for the employee to return to work, she would have to accept the report and the action plan that had been proposed. The employee would not however accept it, and did not return to work. In an attempt to overcome this, the employer proposed a temporary redeployment at another location so that the employee could work in some capacity, without suffering any loss of salary or status. The employee rejected this proposal, refusing to return to work other than at her normal place of work and she therefore remained away from work. Eventually, her employer ceased to pay her salary. The employee then brought a claim for unlawful deduction from wages. The Court of Appeal in this case did not feel the need to imply a mobility clause into the contract in the absence of an express mobility clause to reach its conclusion (as the tribunal and EAT had wanted to imply a mobility clause to allow employees to be temporarily moved to a different location). However, this case is a welcome ruling for employers where they are seeking to return an employee to work following an investigation, particularly a bullying and harassment investigation, where sensitivities are involved. Caution should always be exercised however and advice sought where an employer wishes to withhold payment of salary. It is also a timely reminder that a contract of employment should always contain an express mobility clause to prevent a challenge to a reasonable change of an employee’s workplace. [Luke v Stoke-on-Trent City Council [2007] EWCA Civ 761]
STRESS AT WORK
Employers have a duty to take reasonable care for the health and safety of employees. A breach of this duty can give rise to a personal injury claim against the employer. For a successful claim, an employee has to show that the employer has breached this duty of care, that it was reasonably foreseeable that an injury would result from the breach and that he/she suffered a loss in the form of personal injury (whether physical or mental). It is also an implied contractual term that an employer will take reasonable steps to ensure employees’ safety at work. There also exists an implied duty of mutual trust and confidence to ensure that both sides act fairly during the employment relationship. In a recent case, the Court of Appeal considered whether an employer could be liable in personal injury for psychiatric illness caused by the employer’s manner in conducting an investigation into allegations and the method of informing the employee of the investigation. In this case, the employer had left a letter on the employee’s desk informing him of an investigation into allegations against him of sexual harassment. Nevertheless, the Court of Appeal held that the illness that the employee suffered was not reasonably foreseeable. Whilst the outcome of this case limits the scope of stress claims in relation to conducting procedures such as the disciplinary procedure, it serves as a reminder that employers must take reasonable care to protect the health and safety of their workers or face the risk of personal injury claims where an employee suffers loss. The success of such claims generally depends however upon what the employer knows or ought reasonably to know about the employee (for example by looking at their health record). [Deadman v Bristol City Council [2007] EWCA Civ 822]
STATUTORY SICK PAY
In a recent Court of Appeal case, it was held that agency workers whose agency contracts are for a specified period of three months or less are not entitled to statutory sick pay. However, agency workers can still become entitled to SSP if in a single contract:
Also, agency workers whose contracts are for 3 months or less can still become entitled to SSP if two or more contracts with the same agency are separated by eight weeks or less (56 days) and:
[The Commissioners for Her Majesty's Revenue and Customs v Thorn Baker Limited [2007] EWCA Civ 626]
DISMISSAL FOR ILL-HEALTH CAPABILITY
Capability is a potentially fair reason for dismissing an employee and that capability must relate to the employee's performance of work of a kind which the employee was employed to do. There have been a number of cases concerning ill-health capability dismissals whereby the employee alleges that their employer is either wholly or partly responsible for the condition which has led to their dismissal. In a recent Court of Appeal case, it was confirmed that an employer can fairly dismiss an employee for ill-health capability despite the fact that the employee's stress-related illness is attributed to the conduct of the employer. There will be cases where the fact that an employer has caused the employee’s incapacity will be relevant as to whether it is reasonable do dismiss an employee for incapacity. For example, an employer may be under a duty to “go the extra mile” in finding alternative employment for the employee, or to tolerate a longer period of absence. However, an employer ultimately has the right to dismiss an employee as otherwise, an employer would be obliged to retain such employees in employment indefinitely. The key issue is whether the employer acted reasonably in all the circumstances of the case, even if it caused the ill-health. In this particular case, the employee had categorically stated that she would not be returning to work and this was supported by medical evidence. There was therefore no alternative but to dismiss. The situation may have been different if she had been willing to return to work and try again but she was not. Although the employer was responsible for the employee's ill-health, this was not a basis upon which it could be said that her dismissal was unfair. Whilst this is a welcome case for employers, employers must err on the side of caution when dismissing an employee on ill-health grounds and a dismissal should only be contemplated when there really is no other option. Employment Tribunals will always find sympathy for an employee who is absent from work on ill-health grounds, particularly where they are deemed to have a disability under the Disability Discrimination legislation and even more so where the ill-health has been caused by the employer’s conduct. [McAdie v Royal Bank of Scotland [2007] EWCA Civ 806]
RIGHT TO REQUEST FLEXIBLE WORKING
As well as the changes to Flexible Working that were mentioned in the last update, the right to request flexible working extends to the following persons as of 1 October 2007:
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