30 April 2010

Retiring and Re-hiring a Disabled Worker Could be a Reasonable Adjustment

Whether an adjustment in relation to a disabled worker is reasonable will depend on the facts and circumstances of each case.

The list of reasonable adjustments (e.g. transferring a disabled worker to fill an existing vacancy) set out in s. 18B(2) of the Disability Discrimination Act 1995 is not exhaustive.

In Chief Constable of South Yorkshire Police v Jelic [EAT/0491/09], the EAT held that an employer’s obligation to make a reasonable adjustment by transferring a disabled worker to another job could involve:

• The disabled worker swapping their job with another worker or
• Retiring and re-hiring the disabled worker.


Swapping Jobs with another Worker

The EAT upheld the tribunal’s decision that the failure by South Yorkshire Police (SYP) - to allow Mr Jelic, a disabled police officer, to swap his job with another police officer – was a failure to make a reasonable adjustment.

Retiring and Re-hiring the Disabled Worker

The tribunal also decided that the failure by SYP - to offer ill-health retirement to Mr Jelic and then re-employ him as a civilian support worker – was a failure to make a reasonable adjustment.

However, the EAT remitted the decision to a different tribunal because the original tribunal did not fully explain how it had reached its decision. But the EAT said that the failure by SYP to retire and re-hire Mr Jelic could be a failure to make a reasonable adjustment.

The EAT added that the employer’s obligation to make a reasonable adjustment by transferring Mr Jelic to a civilian support job arose before he retired on the grounds of ill-health. It was wrong to suggest that the obligation no longer existed once Mr Jelic’s employment as a police officer was terminated.

The fact that Mr Jelic was receiving an ill-health pension in respect of his employment as a police officer – did not prevent the tribunal from considering whether his re-employment as a civilian support worker was a reasonable adjustment.


Also see Re-hiring a Disabled Person.

27 April 2010

Age Discrimination

In Homer v Chief Constable of West Yorkshire Police [2010] EWCA Civ 419, West Yorkshire Police introduced a requirement that a legal advisor must have a law degree in order to enter the highest pay grade. Mr Homer, aged 61, was unable to obtain a law degree before he retired. Mr Homer claimed that the requirement amounted to unlawful indirect age discrimination.

The Court of Appeal disagreed.

The requirement to have a law degree in order to enter the highest pay grade did not put older employees at a particular disadvantage when compared with younger employees. The disadvantage suffered by Mr Homer was a consequence of his impending retirement and not a consequence of his age.

22 April 2010

ECJ Case: Part-time Workers Discrimination

In the Austrian case of Zentralbetriebsrat der Landeskrankenhauser Tirols v Land Tirol [C-486/08], where a full-time worker became a part-time worker – the remainder of the holidays that they had accrued during their full-time employment - would be:

• Reduced proportionately to the number of their part-time working hours or
• Taken by the worker at their part-time rate of pay

The ECJ ruled that the practice was unlawful. The pro rata principle did not apply to a part-time worker in relation to holidays that they had accrued as a full-time worker.

Fixed-term Discrimination

The ECJ ruled that it was unlawful to exclude fixed-term workers employed for up to six months or on a casual basis from certain employment rights, e.g. holidays. The exclusion was not justified by the Austrian Government.

Parental Leave

The ECJ also ruled that it was unlawful for a worker not to accrue any holidays during the year before the birth of their child if they took two years’ parental leave.

20 April 2010

TUPE or not TUPE?

In Ward Hadaway Solicitors v Capsticks Solicitors LLP [EAT/0471/09], Ward Hadaway Solicitors (WH) was contracted to provide legal services for the Nursing & Midwifery Council (NMC) until 30 September 2007. On 1 October 2007, Capsticks Solicitors was awarded a contract to provide legal services to NMC.

WH argued that there was a “service provision change” from WH to Capsticks under TUPE. The EAT held that the tribunal was entitled to find that such a change had not taken place.

The tribunal found that nothing was transferred from WH to Capsticks on or after 1 October 2007. WH continued to work on the NMC’s cases that they had already been working on before 1 October 2007. In fact, WH was still working on some of those cases in March 2009.

There was no “service provision change” from WH to Capsticks since WH had not stopped providing legal services to the NMC on 1 October 2007.


The tribunal also found that the legal work carried out by WH was not the same legal work (or the same activity) carried out by Capsticks, e.g. most of the work previously carried out by WH was now carried out by the NMC’s own legal team.

12 April 2010

The Equality Act 2010

The provisions of the Equality Act 2010 [EA] will come into force at different times, e.g. in October 2010; April 2011; 2012; and 2013.

The provisions of the EA 2010 that are expected to come into force in October 2010 include:

Pay Discussions

A term of employment that prevents an employee from disclosing their pay to a work colleague or a former work colleague will be unenforceable [s. 77 of the EA 2010].

Disability Discrimination

It will be unlawful for employers to ask questions about a job applicant’s health before making a job offer, except in certain circumstances [s.60 of the EA 2010].


Further information about such questions is available at: Trotman's Employment Law Alerts

Associative/Perceptive Discrimination

The defintion of direct discrimination will cover a person (e.g. a carer) who is discriminated against - because of their association with another person (e.g. a child) who has a protected characteristic (e.g. a disability) [s. 13 of the EA 2010].

The definition will also apply to discrimination that is based on an employer's perception of an employee’s protected characteristic (e.g. their sexual orientation) regardless of whether the perception is right or wrong.

Gender Reassignment

A person who proposes to undergo; is undergoing; or has undergone the gender reassignment process will no longer have to be under medical supervision in order to be protected by gender reassignment discrimination laws [s. 7 of the EA 2010].

Employment Tribunals

Employment Tribunals can make recommendations in discrimination cases for any other person and not only in relation to the claimant [s. 124(3) of the EA 2010].

Further Information

Further information about the EA 2010 and its Codes of Practice are expected to be available on the Government Equalities Office (GEO) website and the Equality and Human Rights Commission website.


The revised edition [August 2010] of the Explanatory Notes for the Equality Act 2010 can be viewed on the OPSI website.

Update [2 August 2010]

The Equality and Human Rights Commission (EHRC) has published seven guides on the Equality Act 2010 for employers. The guides will come into force on 1 October 2010.

The guides are available at the EHRC website.

Update [20 August 2010]

On 19 August 2010, the GEO published a consultation paper about the public sector equality duty. The consultation period will end on 10 November 2010. The general and specific equality duties are expected to come into force in April 2011.

The consultation paper is available at the GEO website.

6 April 2010

Whistleblowers’ Act must be interpreted purposively

In BP plc v (1) Elstone (2) Petrotechnics Ltd [EAT/0141/09], Petrotechnics Ltd (PL) managed its client’s health and safety operations. BP plc was one of its clients. Mr Elstone, a PL worker, made a series of protected disclosures (or “blown the whistle”) to BP plc about his health and safety concerns.

PL considered the disclosures to be confidential and dismissed Mr Elstone for gross misconduct.

After his dismissal, BP plc employed Mr Elstone as a consultant. However, BP plc did not offer any more consultancy work to Mr Elstone after it discovered the reason for his dismissal.

Mr Elstone claimed that BP plc had subjected him to a detriment because he had made a protected disclosure (or “blown the whistle”).

EAT’s Decision

The EAT held that under the Public Interest Disclosure Act 1998 (also known as the Whistleblowers’ Act) - Mr Elstone was permitted to make such a claim – even though he was employed by PL and not BP plc at the time he had made the protected disclosure (or “blown the whistle”).

The Act had to be interpreted purposively in order to provide proper protection for a whistleblower.

1 April 2010

Overlapping Disciplinary and Grievance Issues

In Samuel Smith Old Brewery (Tadcaster) v Marshall [EAT/0488/09], Mr and Mrs Marshall were pub managers. Their employer instructed them to reduce their staff working hours by about 50% for the pub's survival following a sharp decline in pub trade.

The managers refused to do so. A grievance hearing was held when they complained that the reduction would lead to an unacceptable increase to their working hours. The employer disagreed with their complaint.

After the grievance hearing, the employer instructed the managers to immediately reduce their staff working hours – with a warning that disciplinary action may be taken against them - if they failed to do so. The managers replied that they would not comply with the instruction until a grievance appeal meeting was held.

The employer responded by inviting the managers to attend a disciplinary hearing for their refusal to reduce their staff working hours. The managers replied that they would not attend such a hearing until a grievance appeal meeting was held.

The disciplinary hearing was held in the managers’ absence and they were dismissed for gross misconduct.

EAT’s Decision

The EAT held that the managers’ dismissals were fair.

An employer is not legally required to hold a grievance appeal hearing or exhaust the grievance procedure - before it could hold a disciplinary hearing - if the reason for the disciplinary action is related to the employee’s grievance.

Where an employer holds a disciplinary hearing before the grievance procedure is exhausted that does not automatically mean that the employer is acting unreasonably.

The managers had refused to reduce their staff working hours for over three months and they could have explained the reasons for their refusal at the disciplinary hearing.

The EAT also stated that the “old” ACAS Code of Practice did not require an employer to exhaust the grievance procedure before holding a disciplinary hearing.

Comment

The EAT’s statement about the “old” ACAS Code of Practice also applies to the “new” ACAS Code that came into force on 6 April 2009.

Paragraph 44 [Overlapping grievance and disciplinary cases] of the “new” ACAS Code only refers to a case where an employee raises a grievance during the disciplinary process.