In Salford NHS PCT v Smith the EAT has found that the Trust was not in breach of the reasonable adjustment duty under the Disability Discrimination Act 1995 because it had failed to offer light duties or a career break to Ms Smith who suffered from chronic fatigue syndrome. The DDA, and subsequently the Equality Act, imposes an obligation on employers to make adjustments for the disabled where the effect of the adjustments would mitigate the effects of the disability. In this case the employer was able to demonstrate that by offering light duties or a career break this would do nothing to assist Ms Smith’s return to work. The aim of the relevant provision in the legislation is that adjustments should facilitate the employee’s ability to remain in work. Neither of the adjustments proposed could, in the view of the EAT, amount to adjustments because they would not assist. In this case Ms Smith had declined being moved into alternative roles and was offered training. She did not take up either option. She later claimed constructive dismissal and disability discrimination.

At first instance a tribunal held that the trust had breached its duty to make reasonable adjustments because a provision, criteria or practice (PCP) prevented her from working: in this case the inability to perform her full role in the contracted hours. The Employment Tribunal also found her to have been unfairly constructively dismissed.

The EAT overturned the decision on appeal both in relation to the breach of the reasonable adjustment duty (disability discrimination) and the constructive dismissal. The EAT found that the Trust had behaved appropriately. Ms Smith had not engaged in any of the Trust’s efforts to help her. The Trust had ascertained that there was no job she was capable of doing or that she was prepared to it. It had therefore explored the reasonable adjustment duty. Ms Smith had also declined to attend two meetings which were designed to discuss possible adjustments for her which might assist. On the matter of a career break the EAT held that it would be “highly irregular and contrary to proper and recognised industrial practice” to offer Ms Smith a career break. The EAT also found that there had been no constructive dismissal. The Trust would have been entitled to dismiss for capability which the EAT says is “standard and reasonable in the circumstances“.

The case is interesting because it highlights that the reasonable adjustment duty on the employer is designed to enable keeping a long-term sick employee on the payroll and in work. It is not supposed to make the employee better and if the employee cannot do any work the employer is entitled at a certain point to determine the relationship by means of a capability dismissal. It is important for employers to follow a stringent and thorough procedure (including medical examination and evidence) before dismissing for capability but it is possible. As ever, advice should be sought urgently. The stakes are high in disability discrimination claims and even more so if it is unlikely that the employee will be able to work in the future. Be warned.

It is also interesting that the EAT found that a career break (without pay) was not a solution. The guidance to the legislation suggests that it may be a reasonable adjustment to offer a career break. The EAT’s point on this is that the employee would be barred from being paid under a PHI scheme or from the possibility of ill-health retirement because they would be having a career break rather than being off sick long-term. Their logic makes every good sense.

The right to four weeks’ paid annual leave is an important principle of EU social law. We know that. We’ve known that for some time. But did you know the ECJ has now held that the right to four weeks’ paid leave conveyed by the Working Time Directive has direct effect in the UK. What does this mean? It means that if you work for a public sector employer or are a public sector employer you need to be careful about paying a minimum of four weeks’ leave to employees on long-term sick leave irrespective of whether they have asked for it, asked for carry over, your policy, etc. The case which decided this point is Dominguez v Centre Informatique du Centre Ouest Atlantique. Dominquez had an accident and was off sick for over a year (November 2005 to January 2007). The French Court de Cassation refused her claim to 22.5 days’ paid leave because under French law a worker is only entitled to leave if he or she has worked during the preceding period for at least 10 days. The ECJ held that the Directive does have direct effect and that it imposes unequivocal terms and an unconditional obligation on Member States to apply the four week minimum. The public sector employer must be an emanation of the state for this to apply. This is often a source of debate when organisations are partly incorporated and funded by government but not strictly a government entity.

If you’re not sick (ouch! – sorry!) of decisions around holiday (pay) and sick leave you might be soon. This is still an area of law which is not yet settled. The forthcoming proposals to change the UK’s Working Time Regulations might bring some clarity, let’s hope so.

Edward Davey the Employment Minister has announced that BIS (the Department for Business, Innovation and Skills) will fund mediation training for employees from 24 SMEs to form pilot mediation networks in Cambridge and Manchester later this year. The plan is that once trained these mediators will provide mediation to other organisations in their network. The aim is to resolve disputes without recourse to employment tribunals. This scheme is a result of the Government’s consultation on Resolving Workplace Disputes. Responses to the consultation suggested that SMEs were not aware of the benefits of mediation. The pilot scheme for regional mediation networks will run for 12 months. The plan is to introduce the scheme into other areas of England, Wales and Scotland if the pilot proves successful.

There has been much debate in legal circles in recent years about the benefits of mediation. It has taken hold very well in certain practice areas such as family law. It lends itself well to disputes in the employment arena but will only work if it is sought at an early stage in the dispute before emotions start running high and the parties take entrenched positions. One thing is for sure though: mediation IS the future of legal disputes.

The TUC General Secretary Brendan Barber has condemned plans to introduce tribunal fees as “chequebook justice” and “a profoundly regressive step”. Of course you already know that I am entirely in agreement with his position. Potential fees for discrimination claims of £1,750 will make enforcement of discrimination laws harder. Employers are more likely not to be held to account. The Government consultation on fees closes on 12 March but it is clear that there will be fees. The consultation deals with what the scale of fees will be and which of the two proposed schemes will work better. Brendan Barber says the government pays lip service to equality but some of its actions threaten to make Britain less equal, less fair, less just. The Government states that the introduction of fees is to relieve pressure on the taxpayer and encourage parties to settle disputes. Brendan Barber says fees will be a deterrent to employees pursuing discrimination claims and that can only be a bad thing: unscrupulous employers will discriminate at will with little fear of any consequences.

Fees are likely to be introduced from April 2013 but we will let you know as soon as the Government announces what the new regime will be. Whilst some employers will breathe a sigh of relief at the introduction of fees how can anyone want the regime to undermine equality? We have come a long way since the first discrimination laws were brought into force for sex and race in the 70s. This is hardly a progressive step for our society at large and especially for those suffering from disabilities related to mental health who are already those which suffer the most discrimination.

An interview I gave to a journalist about mental health issues in the workplace got picked up quite widely on the wire. Check it out. The long hours culture and mental illness. The OECD says one in five workers has mental health problems. I think the number is higher but because of the stigma attached to conditions like depression fewer people declare.

http://snowdropkcs.co.uk/hr_software_news_detail.aspx?aid=2679

http://insight.badenochandclark.com/legal/21/12/2011/expert-link-between-hours-worked-and-mental-illnesses-for-those-in-legal-jobs/6970/

http://www.eca.co.uk/training-news-and-events/news/industry-news/mental-health-issues-dealt-with-poorly-in-the-workplace/801246474/

http://www.yell.com/health/blog/mental-issues-common-in-marketing-and-sales/

http://www.lorienresourcing.co.uk/news/292-lack-of-mental-health-awareness-an-issue-in-uk-offices/

http://www.inclusiveemployers.co.uk/equality-diversity-inclusion-news/inclusion/mental-illness-a-growing-problem-for-employers/801247741

http://www.thomsons.asia/page/26622/mental-health-is-related-to-hours-worked-experts-claim-

If an Employment Tribunal concludes that a reasonable employee would have accepted an offer of alternative employment can an employee act reasonably in refusing the offer? Yes, according to the EAT in Readman v Devon Primary Care Trust. The claimant was a nurse at risk of redundancy who was offered three alternative roles. One of the roles was found by the ET to be a reasonable alternative. Mrs Readman refused the position. She had been in community nursing for many years and didn’t want to go back to work in a hospital. The tribunal at first instance held that she was not entitled to a redundancy payment. The tribunal said a reasonable employee would have accepted the hospital post. The EAT overturned the decision on appeal. The question for the tribunal should have been whether this employee acted unreasonably in refusing the offer. The EAT considered that she had a sound and justifiable reason for turning down the job and found that Mrs Readman WAS entitled to a redundancy payment.

This presents an interesting insight into the question of reasonableness and alternative positions at a time when redundancies are at a recent all time high. Employers would be well advised to consider the reasonableness of an employee’s decision to refuse an alternative. If they can give a sound justification refusal to pay redundancy may be unlawful. As ever, take advice from an expert.

In O’Cathail v Transport for London an Employment Tribunal judge accepted that the claimant was ill but refused to adjourn proceedings for a second time. The ET judge said that one of the reasons was that a considerable time had passed since the alleged events. The decision has been overturned by the Employment Appeals Tribunal. The EAT held that where a claimant is blamelessly unable to attend and the tribunal is satisfied that they are genuinely unable, an adjournment should be granted. If refusal of an adjournment is likely to lead to dismissal of the claim a tribunal must take care not to prejudice the claimant or cause injustice (per Teinaz v London Borough of Wandsworth). The EAT will rarely examine adjournment decisions but if fairness is in jeopardy it will consider the fairness of refusing an adjournment. This is a worrying case for employers since there is often a desire to move on with business and get matters pending in tribunals out of the way. Additionally it has costs implications (increased solicitor and/or Counsel brief fees). The nuisance value of this decision to employees is huge although employers would be well-advised to ensure the medical evidence supports the inability to attend. This might provide additional impetus for employers to settle claims involving employees who are unwell. The question which remains however is how many adjournments is fair and when does a tribunal reach a point where it will dismiss a claim which has failed to proceed? The injustice to the claimant should not be allowed to outweigh the injustice to the respondent so there may be occasions when a tribunal may be prepared to pull the trigger.

The Government’s Response to the consultation on Resolving Workplace Disputes sets out the following proposed changes to employment law. No implementation dates have yet been given. We will let you know when these are anticipated to bite. In essence the changes are:

1. Early conciliation of disputes through ACAS. The proposal is that all Employment Tribunal claims should first be required to submit to Pre-Claim Conciliation. This is already a free service offered by ACAS but currently it requires the consent of both parties to participate. The new scheme would be compulsory and would “stop the clock” on the limitation date for Tribunals. Effectively parties would be forced to conciliate which in my view goes against the spirit of conciliation which should be entered into because parties want to. If the process is unsuccessful the claimant would still have one month within which to submit a claim to the ET.

2. Mediation. The Government will undertake a long-term reform programme to increase the use of mediation. Other areas of law are much further ahead on mediation than employment, for example family and divorce matters. Again the issue with mediation is that parties must want to enter into it and if parties are already entrenched they may not be willing to do so. I was at a recent event and heard speakers from the Court of Appeal and the High Court who were adamant that mediation must remain a voluntary process. Mediation can be encouraged by increasing people’s understanding of the process but if parties want to fight it has less impact.

3. Financial penalties for employers. It is proposed that financial penalties be imposed on employers who lose at tribunal. The consultation proposes a penalty of half the award made at tribunal with a minimum of £100 and a maximum of £5,000. This may prompt smaller employers to settle but it will certainly not deter larger corporates with deep pockets. The award will be at the tribunal’s discretion, it will not be automatic.

We’ll keep you posted on when these proposals are likely to come into force.

There has been a flurry of activity from the Government in recent months about changes to employment law which it believes will assist businesses and therefore the economic recovery. Those of you who follow my blog will be in no doubt as to my position on many of the proposed reforms. Amidst all the proposed changes it is probably difficult for employers to work out which changes will come into effect this year and which remain at the level of proposed changes which are unlikely to have any force until 2013 if at all. This blog is to clarify the position and I have set out the changes which will be effective in the coming months. It is worth bearing in mind however that the Government has yet to publish the draft legislation required for them to implement the April 2012 changes. They need to get a move on!

Effective 1 February 2012
Maximum compensatory award for unfair dismissal rises from £68,400 to £72,300
New rates for calculating maximum rate of a week’s pay (statutory redundancy, basic award,etc) of £430 (up from £400)
Maximum statutory redundancy pay up from £12,000 to £12,900

Effective April 2012 – dates to be confirmed when available.
Prescribed rate of maternity allowance, SMP, SPP, SAP up from £128.73 to £135.45.
Statutory sick pay weekly rate up from £81.60 to £85.85.
Qualifying period for unfair dismissal to rise from one year to two years. It has not been confirmed (yet) whether this will apply to existing or new employees after April. If it is for new employees only it will not bite until April 2013.

Other Tribunal changes effective April 2012:
Witness statements to be taken as read (thereby cutting down the length of hearings) unless a judge orders otherwise. This is already common practice in some Tribunals.
Maximum amount of costs which can be awarded will increase from £10,000 to £20,000. Remember costs awards in Tribunal are still the exception not the rule and are rare.
There will be no further state funding for the attendance of witnesses at hearings.
Judges in unfair dismissal cases to sit alone without the two “wing” or lay panel members. This will be reviewed after one year.

We will let you know when the legislation is passed and these changes become active.

In 2011 and for the first time since age discrimination became a protected characteristic, the number of age claims submitted to the Employment Tribunals has overtaken the number of race discrimination claims. I suspect the reasons for this are as follows: 1. with the advent of diversity initiatives and the fact that race has been protected for over thirty years employers (and society at large) have made huge strides in achieving racial equality; the age provisions are relatively new; 2. the abolition of the default retirement age will make it harder for employers to justify dismissing older staff and older employees who do not want to retire will not appreciate any efforts to force them to do so; and 3. with the impending increase in the qualifying period for unfair dismissal (up from one year to two years) employees will be looking for other heads of claim under which to bring claims. Age discrimination claims will certainly increase. This year sees the Supreme Court hearing two appeals from the Court of Appeal. These will either expand the ambit of the legislation or restrict it, depending on the way the decision goes. The ones to watch are the joined cases of Homer v Chief Constable of West Yorkshire and Seldon v Clarkson Wright and Jakes, etc. We will be sure to let you know the outcome as it will set a precedent for the way employers deal with age going forward. Employers beware. If you are planning to discipline or dismiss an older employee take advice. And remember very young employees can also bring claims. This will become a minefield but at least you know where to come for help!