On 27 May 2010, the Identity & Passport Service (IPS) announced that:
“The Government plans for identity cards for British citizens will be scrapped within 100 days”.The IPS added that:
“The Identity Documents Bill is part of a first wave of priority legislation set out in the Queen's Speech on 25 May. The Bill will invalidate the identity card, meaning that holders will no longer be able to use them to prove their identity [my emphasis] or as a travel document in Europe.”
Further information about the cancellation of identity cards is available on the IPS website.
Comment
From 24 November 2009, an employer can accept a person's ID Card (issued under the Identity Cards Act 2006) as proof of their legal right to work in the UK: The Immigration (Restrictions on Employment) (Amendment) Order [SI 2009/2908].
Prudent HR decisions are based on up-to-date information. Trotman's Employment Law Alerts (TELA) was an email news service that quickly informed HR professionals about the latest employment law developments. This is proven by the publication dates of the news items shown below. TELA provided accurate; concise; in-depth; and practical coverage of topical employment law developments. See @tonytrotman on X (formerly known as Twitter) for the latest employment law developments.
28 May 2010
ID Cards will no longer prove that a person has the legal right to work in the UK
20 May 2010
Pre-employment questions about a job applicant’s health
Section 60 of the Equality Act 2010 is expected to come into force in October 2010.
General Rule
The section states that it is unlawful for an employer to ask questions about a job applicant’s health before they are offered a job (on a conditional or unconditional basis) or included in a pool of shortlisted job applicants to be offered a job when a suitable vacancy arises.
Exceptions
However, it is lawful for an employer to ask such a question before the job applicant has been offered a job or shortlisted - if the question is being asked for the purpose of:
• Making a reasonable adjustment to enable the job applicant to participate in the recruitment process, e.g. asking a job applicant who has been invited to attend an interview/test if they would like any reasonable adjustments.
• Establishing whether the job applicant will be able to carry out an intrinsic job function, e.g. if the manual lifting of heavy items is an intrinsic job function – the employer may ask questions about the job applicant’s health to establish whether they are able to do the job (with reasonable adjustments for a disabled job applicant, if required).
• Equal opportunities monitoring.
• Supporting positive action in employment of disabled people.
• Identifying a suitable job applicant where there is a genuine occupational requirement for the job holder to be disabled.
• National security vetting.
Update [2 August 2010]
Further information about health or disability questions can be found on pages 73 - 76 of the guide entitled What equality law means for you as an employer: when you recruit someone to work for you.
The guide will come into force on 1 October 2010.
General Rule
The section states that it is unlawful for an employer to ask questions about a job applicant’s health before they are offered a job (on a conditional or unconditional basis) or included in a pool of shortlisted job applicants to be offered a job when a suitable vacancy arises.
Exceptions
However, it is lawful for an employer to ask such a question before the job applicant has been offered a job or shortlisted - if the question is being asked for the purpose of:
• Making a reasonable adjustment to enable the job applicant to participate in the recruitment process, e.g. asking a job applicant who has been invited to attend an interview/test if they would like any reasonable adjustments.
• Establishing whether the job applicant will be able to carry out an intrinsic job function, e.g. if the manual lifting of heavy items is an intrinsic job function – the employer may ask questions about the job applicant’s health to establish whether they are able to do the job (with reasonable adjustments for a disabled job applicant, if required).
• Equal opportunities monitoring.
• Supporting positive action in employment of disabled people.
• Identifying a suitable job applicant where there is a genuine occupational requirement for the job holder to be disabled.
• National security vetting.
Update [2 August 2010]
Further information about health or disability questions can be found on pages 73 - 76 of the guide entitled What equality law means for you as an employer: when you recruit someone to work for you.
The guide will come into force on 1 October 2010.
18 May 2010
Blindness in right eye is not a disability
In London Borough of Redbridge v Baynes [EAT/0293/09], Mrs Baynes’ manager changed her job duties when she became blind in her right eye. Mrs Baynes resigned and made a disability discrimination claim.
During the tribunal case, Mrs Baynes repeatedly stated in writing that:
• She was not a disabled person.
• The blindness in her right eye was treated as a disability by her manager.
• Moorefields Eye Hospital had certified in writing that she was fully fit to perform her normal job duties.
The EAT held that Mrs Baynes was not a disabled person for the purposes of the Disability Discrimination Act 1995 – because she had conceded that she was not a disabled person – and there was no medical evidence to show that she was a disabled person.
The EAT added that Mrs Baynes was not entitled to withdraw her concession because it was a clear and informed concession. It was an informed concession because she had received legal advice before and during the tribunal case.
Comment: Perceptive Discrimination
Under s. 13 of the Equality Act 2010 (EA) - Mrs Baynes may have argued that her less favourable treatment was due to her manager’s perception that she was disabled regardless of whether the manager's perception is right or wrong.
Section 13 of the EA 2010 is expected to come into force in October 2010.
During the tribunal case, Mrs Baynes repeatedly stated in writing that:
• She was not a disabled person.
• The blindness in her right eye was treated as a disability by her manager.
• Moorefields Eye Hospital had certified in writing that she was fully fit to perform her normal job duties.
The EAT held that Mrs Baynes was not a disabled person for the purposes of the Disability Discrimination Act 1995 – because she had conceded that she was not a disabled person – and there was no medical evidence to show that she was a disabled person.
The EAT added that Mrs Baynes was not entitled to withdraw her concession because it was a clear and informed concession. It was an informed concession because she had received legal advice before and during the tribunal case.
Comment: Perceptive Discrimination
Under s. 13 of the Equality Act 2010 (EA) - Mrs Baynes may have argued that her less favourable treatment was due to her manager’s perception that she was disabled regardless of whether the manager's perception is right or wrong.
Section 13 of the EA 2010 is expected to come into force in October 2010.
13 May 2010
Employer is not obliged to believe the complainant or alleged wrongdoer
In Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522, the Court of Appeal upheld the tribunal's decision that the hospital had unfairly dismissed Ms Roldan, an intensive care nurse, for allegedly mistreating a patient.
Employer's liability for the loss of a dismissed employee
The hospital referred the alleged incident to the police in accordance with its procedures. As a result of the referral, the Crown Prosecution Service prosecuted Ms Roldan but she was acquitted.
Ms Roldan could not work for 14 months while she was being prosecuted. Ms Roldan claimed that the tribunal’s award for her unfair dismissal should include her loss due to being unable to work while she was being prosecuted. Her prosecution was a result of the hospital referring her case to the police - and therefore - the hospital was responsible and liable for her loss during the 14-month prosecution period.
The EAT disagreed. However, at the Court of Appeal, the hospital conceded that it was liable for Ms Roldan's loss during the 14-month prosecution period. The Court of Appeal stated that the EAT's decision was wrong and the hospital was right to make the concession [see para. 43].
Employer is not obliged to believe the complainant or alleged wrongdoer
The Court of Appeal added that where the complainant and alleged wrongdoer have presented conflicting accounts of an alleged incident, the employer is not obliged to:
• Believe the complainant and disbelieve the alleged wrongdoer or
• Disbelieve the complainant and believe the alleged wrongdoer.
There may be cases where the employer cannot properly resolve the conflicting evidence - and therefore – it will conclude that the complaint has not been proven. However, such a conclusion does not mean that the employer disbelieves the complainant.
For example, the employer may tend to believe that a complainant is giving an accurate account of an incident - but at the same time it may be wholly out of character for an employee - who has given years of good service to have acted in the way alleged. It would be perfectly proper in such a case - for the employer to give the benefit of the doubt to the alleged wrongdoer - without feeling compelled to make a decision in favour of the complainant or alleged wrongdoer [see para. 73].
Employer's liability for the loss of a dismissed employee
The hospital referred the alleged incident to the police in accordance with its procedures. As a result of the referral, the Crown Prosecution Service prosecuted Ms Roldan but she was acquitted.
Ms Roldan could not work for 14 months while she was being prosecuted. Ms Roldan claimed that the tribunal’s award for her unfair dismissal should include her loss due to being unable to work while she was being prosecuted. Her prosecution was a result of the hospital referring her case to the police - and therefore - the hospital was responsible and liable for her loss during the 14-month prosecution period.
The EAT disagreed. However, at the Court of Appeal, the hospital conceded that it was liable for Ms Roldan's loss during the 14-month prosecution period. The Court of Appeal stated that the EAT's decision was wrong and the hospital was right to make the concession [see para. 43].
Employer is not obliged to believe the complainant or alleged wrongdoer
The Court of Appeal added that where the complainant and alleged wrongdoer have presented conflicting accounts of an alleged incident, the employer is not obliged to:
• Believe the complainant and disbelieve the alleged wrongdoer or
• Disbelieve the complainant and believe the alleged wrongdoer.
There may be cases where the employer cannot properly resolve the conflicting evidence - and therefore – it will conclude that the complaint has not been proven. However, such a conclusion does not mean that the employer disbelieves the complainant.
For example, the employer may tend to believe that a complainant is giving an accurate account of an incident - but at the same time it may be wholly out of character for an employee - who has given years of good service to have acted in the way alleged. It would be perfectly proper in such a case - for the employer to give the benefit of the doubt to the alleged wrongdoer - without feeling compelled to make a decision in favour of the complainant or alleged wrongdoer [see para. 73].
11 May 2010
Ex-police officer had a fair tribunal hearing
In Power v Greater Manchester Police Authority [EAT/0087/10], Ms Joyce wrote a letter to Mr Power stating that his psychic beliefs (e.g. being able to contact people after their deaths) were not compatible with his employment as a police officer.
Mr Power was dismissed and he claimed that his dismissal amounted to unlawful religious/belief discrimination. However, Ms Joyce did not attend the tribunal hearing as a witness for the employer.
Mr Power claimed that his right to a fair trial under the Human Rights Act 1998 (HRA) had been breached since he was unable to cross-examine Ms Joyce at the tribunal hearing.
The EAT disagreed. Mr Power’s right to cross-examine Ms Joyce (or his accuser) under Art. 6(3)(d) of the HRA 1998 applied to criminal cases and not to discrimination cases.
Comment
In Greater Manchester Police Authority v Power [EAT/0434/09], the EAT held that Mr Power’s psychic beliefs was a religion/belief under the Employment Equality (Religion or Belief) Regulations 2003.
Also see Power v Greater Manchester Police Authority [EAT/0087/10].
Mr Power was dismissed and he claimed that his dismissal amounted to unlawful religious/belief discrimination. However, Ms Joyce did not attend the tribunal hearing as a witness for the employer.
Mr Power claimed that his right to a fair trial under the Human Rights Act 1998 (HRA) had been breached since he was unable to cross-examine Ms Joyce at the tribunal hearing.
The EAT disagreed. Mr Power’s right to cross-examine Ms Joyce (or his accuser) under Art. 6(3)(d) of the HRA 1998 applied to criminal cases and not to discrimination cases.
Comment
In Greater Manchester Police Authority v Power [EAT/0434/09], the EAT held that Mr Power’s psychic beliefs was a religion/belief under the Employment Equality (Religion or Belief) Regulations 2003.
Also see Power v Greater Manchester Police Authority [EAT/0087/10].
7 May 2010
Father is entitled to paid time off to care for his child
In Alvarez v Sesa Start Espana ETT SA (C-104/09), Spanish law permitted a female employee to take paid time off from work to care for her baby until it was nine months’ old. She could take such time off by reducing her working day by 30 minutes or taking paid time off for one hour per working day.
If the baby’s father was an employee – he could take paid time off from work to care for the child – only if the baby’s mother had not taken such time off.
Mr Alvarez, an employee, made a request to take paid time off to care for his child. His request was refused because his wife was self-employed and not an employee. Mr Alvarez argued that the refusal amounted to unlawful sex discrimination under the Equal Treatment Directive. Mr Alvarez claimed that he should have the same independent right as a female employee to take paid time off to care for his child.
The Advocate General agreed and ruled that the ECJ should uphold his claim.
Since the Spanish law was primarily concerned with the care of a baby which could be provided by the baby’s mother or father - Mr Alvarez was not claiming that he was entitled to the same protective rights (e.g. maternity leave and pay) afforded to women in relation to pregnancy or maternity under EU law.
The decision of the ECJ is awaited. The ECJ usually agrees with the ruling of the Advocate General.
Update [30 September 2010]
On 30 September 2010, the ECJ agreed with the ruling of the Advocate General: Alvarez v Sesa Start Espana ETT SA (C-104/09) and the ECJ's press release.
If the baby’s father was an employee – he could take paid time off from work to care for the child – only if the baby’s mother had not taken such time off.
Mr Alvarez, an employee, made a request to take paid time off to care for his child. His request was refused because his wife was self-employed and not an employee. Mr Alvarez argued that the refusal amounted to unlawful sex discrimination under the Equal Treatment Directive. Mr Alvarez claimed that he should have the same independent right as a female employee to take paid time off to care for his child.
The Advocate General agreed and ruled that the ECJ should uphold his claim.
Since the Spanish law was primarily concerned with the care of a baby which could be provided by the baby’s mother or father - Mr Alvarez was not claiming that he was entitled to the same protective rights (e.g. maternity leave and pay) afforded to women in relation to pregnancy or maternity under EU law.
The decision of the ECJ is awaited. The ECJ usually agrees with the ruling of the Advocate General.
Update [30 September 2010]
On 30 September 2010, the ECJ agreed with the ruling of the Advocate General: Alvarez v Sesa Start Espana ETT SA (C-104/09) and the ECJ's press release.
4 May 2010
Tribunal Procedure for National Security Cases is not Unlawful
The Closed Material Procedure (CMP) allows an employer to disclose information to a Special Advocate but not to the claimant if the disclosure would be contrary to, e.g. the interests of national security.
A Special Advocate is an appointed lawyer who is instructed to represent the claimant in relation to the information that is kept secret from the claimant and their legal representative.
In Home Office v Tariq [2010] EWCA Civ 462, the Court of Appeal held that the CMP was lawful and did not breach any EU law or Mr Tariq’s right to a fair trial under the Human Rights Act 1998.
The Court of Appeal added that since the Home Office intended to use the undisclosed information as its defence against Mr Tariq’s tribunal claim – it was required to provide a gist of that information to Mr Tariq – to ensure that he had a fair trial.
A Special Advocate is an appointed lawyer who is instructed to represent the claimant in relation to the information that is kept secret from the claimant and their legal representative.
In Home Office v Tariq [2010] EWCA Civ 462, the Court of Appeal held that the CMP was lawful and did not breach any EU law or Mr Tariq’s right to a fair trial under the Human Rights Act 1998.
The Court of Appeal added that since the Home Office intended to use the undisclosed information as its defence against Mr Tariq’s tribunal claim – it was required to provide a gist of that information to Mr Tariq – to ensure that he had a fair trial.