In our constant pursuit of perfection we have upgraded our already fabulous website. Check it out today and “like” it on our updated didlaw facebook page. Some of the new features on the site are…

- client stories showing how we work and what we can achieve for you. Thanks to all our fabulous clients past and present for allowing us to use their comments. We appreciate it so much!

- updated testimonials which evidence the outstanding feedback we get from our happy clients

- brief guides to the law around disability – these are free to download. Employers will love the one on pre-employment health questions, an area which has caused much confusion since the Equality Act came into force

- links to wonderful online resources both for further legal advice but also for advice on ill health and in particular depressive conditions. There is advice for employers and employees. We’ve even got some reading recommendations!

-details of our disability consultancy services and the work we do for public sector employers

and

- a round up of the media coverage we have received for our endeavours in making the world of work and disability compatible.

I am particularly proud of the mission statement on our Home page. It encapsulates all that we are and all we believe in.

Check it out today. We hope you enjoy it as much as we love it.

A big thank-you to Mzuri Design for bringing it all to life and for their constant patience with my ever-changing demands. They are consummate professionals who are extremely fun to work with. At times I am sure I drove them crazy with my fastidiousness but you’d never know if I did! Phil you are a design guru. Katherine you are a marketing genius and a saint.

If you enjoy our site please pass on the link to your colleagues, friends and associates. Spread the word.

We’re not just another law firm and this is not just another website.

The much-awaited judgment in Seldon v Clarkson Wright and Jakes (a law firm) is finally out. The Supreme Court has considered whether a firm of solicitors had legitimate aims in setting a compulsory retirement age of 65. This decision has even more power for employers now that the default retirement age has been abolished. Employers need to take care over staff retirement issues and avoid falling foul of the Equality Act provisions against age discrimination.

Mr Seldon, a partner, was compulsorily retired in December 2006, when he reached 65. He wished to carry on working even if only in a self-employed capacity. The firm rejected his proposal and after his retirement he issued tribunal proceedings. His claim was that he had been directly discriminated against on grounds of age.

The first instance tribunal upheld the justification given by the firm. Mr Seldon appealed to the EAT. The EAT upheld one ground of appeal which was that there was no evidence to support the firm’s position that a compulsory retirement age of 65 was a proportionate means of achieving the third aim identified (see below). The EAT remitted the case back to the tribunal. Mr Seldon appealed again but the Court of Appeal upheld the EAT’s decision. He then appealed to the Supreme Court arguing that the aims identified were not legitimate.

The aims identified by Clarkson, Wright and Jakes were:

(1) to retain associates by being able to offer them partnership after a reasonable period. If older staff were not retiring there would be no partnership openings;
(2) to facilitate partnership and workforce planning with realistic expectations as to when vacancies arise; and,
(3) creating a congenial and supportive workplace culture by limiting expulsion of partners on performance grounds.

The Supreme Court has now held that the firm had identified legitimate aims: these were (1) staff retention, (2) workforce planning, and (3) dignity for older staff. The SC held that the three aims identified did amount to social policy objectives for the purpose of the Equal Treatment Framework Directive.

The case will now be remitted to the employment tribunal for it to consider whether the chosen retirement age of 65 was a proportionate means of achieving a legitimate aim. We will keep you posted on the outcome of that decision.

So why is Seldon so important?

Unlike other forms of direct discrimination which cannot be justified age discrimination can potentially be objectively justified. The Equal Treatment Framework Directive (2000/78/EC) states at Article 6 that differences of treatment on grounds of age will not constitute discrimination if they are objectively and reasonably justified by a legitimate aim. Such aims include employment policy, labour market and vocational training objectives.

In the course of her (unanimous) judgment Lady Hale examined a number of ECJ authorities and identified two different kinds of legitimate social policy objective:
(1) inter-generational fairness. This could be anything from facilitating access to employment for young people to enabling older people to remain in the workforce; and,
(2) dignity, including the need to dismiss older workers on grounds of underperformance thus preserving dignity and sparing humiliation.
Lady Hale accepted that the firm’s aims behind its compulsory retirement age were legitimate social policy objectives.

The employment tribunal will now decide whether, having identified legitimate aims, compulsory retirement at 65 is “appropriate and necessary“. It may be that at the time in question, when the default retirement age was permitted, this age was an acceptable means of achieving these legitimate aims. That decision will be helpful for claims brought under the DRA regime but will it assist us now in dealing with retirement and age issues? That is the million dollar question.

My views on the abolition of the DRA are widely known (well they are if you read this blog!). In my view this was a ludicrous decision creating a nightmare for employers. How can young people be brought into the work pipeline if the other end of the chain is blocked by people who simply don’t want to retire? There are only a certain number of jobs available. Added to this it gives employers the really unpleasant task of tackling underperformance in older staff if a dismissal is to be justified. And to do so without being discriminatory. This has created a minefield for employers. Not helpful at all.

We’ll keep you posted on the next episode of the Seldon saga. In the meantime if you are an employer looking to retire an older worker for goodness sake take advice first!

In Homer v Chief Constable of West Yorkshire Police the Supreme Court has held that an employee whose forthcoming retirement meant that he could not get a degree (and benefit from the increased status and salary associated with it) had been disadvantaged on grounds of his age. If the Police could not justify the requirement that Mr Homer needed to obtain a degree this would constitute indirect age discrimination. The Police tried to argue that it was retirement, not age, which prevented Mr Homer from promotion. The Supreme Court rejected this argument on the basis that retirement is inextricably linked with age.

Mr Homer had a long history with the Police. He had been an inspector for 30 years then in 1995 joined West Yorkshire Police as a legal adviser. When he was appointed there was a requirement for legal advisers to have a law degree (or equivalent) but his experience in criminal law was so exceptional he was hired irrespective of this fact. In 2005 the Police introduced a new structure following its failure to attract and retain legal advisers. There were three levels in the new structure and level 3 required a degree. While Mr Homer was able to do a degree it would take him beyond the Police’s compulsory retirement age of 65. He applied to be treated as complying with the level 3 threshold and was rejected. He filed a claim in the Employment Tribunals for indirect age discrimination.

The claim was brought under the now repealed Employment Equality (Age) Regulations 2006 (SI 2006/1031). An employer indirectly discriminates on grounds of age where they apply a provision, criterion or practice (PCP) to an employee which would apply equally to other people not of the same age group but which puts (or would put) other people of the same age group as the employee at a particular disadvantage and which does in fact put the employee at a disadvantage. The employer has a justification defence which is that if it can show that the PCP is a proportionate means of achieving a legitimate aim the discrimination might be permitted.

The EAT and the Court of Appeal had previously held that there was no age discrimination in this case. Both the EAT and the CA held that the barrier to Mr Homer’s promotion to level 3 was not age but retirement. They said the same result would apply to others in his comparator age group so no inequality on grounds of age arose.

The Supreme Court disagreed and upheld Mr Homer’s appeal. The criterion to have a law degree had disadvantaged him. This could be indirect age discrimination if the Police could not justify the treatment. The case will not be sent back to the Employment Tribunals to determine whether the treatment was justified.

What is interesting in the Supreme Court’s decision is the conclusion that saying that retirement is a fact of life which is separate from age is an unsustainable argument. This must be right. The case also provides some interesting points about identifying the correct comparator and some important observations on justification. The full judgment is available at http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2010_0102_Judgment.pdf

In Meister v Speech Design Carrier Systems GmbH the ECJ has decided that European discrimination law does not entitle an unsuccessful job applicant to access information about the recruitment process. There is no positive obligation on employers to volunteer this information. However. However. However. Courts and tribunals may draw an inference from the refusal to provide this information if the facts point towards discrimination. Not completely a Get Out of Jail Free card therefore!

Speech Design advertised for a software developer. Ms Meister, a Russian national, applied for the job, for which she was adequately qualified, but was turned down. After the job was advertised a second time she reapplied and was rejected again. No reasons were given. She brought a claim in the German labour court for race, sex and age discrimination. During proceedings she asked that the file of the successful applicant be produced but Speech Design refused. A reference was made to the ECJ as follows:

Does an unsuccessful applicant who meets the advertised criteria have the right to know if another person was successful and if so, to know what the selection criteria were? and,

If the employer does not disclose the information can that give rise to a presumption of discrimination?

The ECJ held that in discrimination cases there is no right to the information about the successful candidate. It also held however that the national court is obliged to assess the employer’s attitude. This can be done by considering the failure to provide the information and by taking into account the wider factual context of the case.

This is a decision which underlines the importance of following an objective recruitment process which can be identified by reference to a standard matrix. In such a case an employer would not feel any need to be anything other than open in sharing this information. If a claimant can establish a prima facie case of discrimination why would an employer want them to succeed in the tribunal on the basis of a refusal to provide information which should in any event be kept as a matter of record? Well-documented recruitment processes will not be challenged by the fallout from this decision.

In my opinion any reluctance to share this information will be used to great advantage by claimants and their legal representatives. Remember that in tribunal procedings the employer will hold most of the evidence so tribunals tend to lean towards ordering them to disclose information that might level the playing field. Providing such information up front could save a lot of headaches.

We blogged last week (18 April) about the Northern Ireland case of Teggart v Tele Tech which has added another case to a growing body of case law around misconduct dismissals and social media.

With social media gaining importance and popularity every day, employers are well-advised to get up to speed on the law, to have a policy and know how to implement it. They also need of course to explicitly advertise that policy to employees.

It is also important that any social media policy stipulates how much tolerance will be given to using social media during work hours. Come on – be realistic – it’s happening all the time and there’s very little you can do to completely stop it without looking like a tyrant!. Accept that it will happen but let employees know you will allow a certain amount of time to be given to it each day but also to know that you are entitled to, and will monitor, the amount of time spent. Excessive time spent should be raised as a disciplinary matter. A healthy respect for social media use at work is the path of least resistance. It will also gain you respect from staff who don’t want to feel like Big Brother is watching them.

In Teggart v Tele Tech a male employee was dismissed for gross misconduct after posting offensive comments about a female employee on his facebook page. The posts were made during his own time from home and the woman concerned was not a facebook friend of his but the comments were brought to her attention. She challenged Mr Teggart and asked him to remove the comments. Instead of backing down he posted further offensive comments about her sexual promiscuity. The effect was to cause her to feel humiliated and offended at work. This constituted harassment. Mr Teggart was duly dismissed.

In Preece v J D Wetherspoons plc, an Employment Tribunal decision from 2010 (ET/2104806/10) a group of employees were dismissed for making derogatory comments about their workplace on facebook.

The same happened in Crisp v Apple Retail (UK) Limited (ET/1500258/11). In both cases the employers had a policy on social media use and acceptable behaviour. The policies contained a warning that making derogatory comments in social media could lead to disciplinary sanctions.

Conversely, in Whitham v Club 24 Ltd (ET/1810462) an employment tribunal found that dismissing an employee for relatively minor derogatory comments was not reasonable in all the circumstances and was therefore unfair.

As a manager/employer/business owner you need to ensure you have a policy, that you implement it and that employees are in no doubt as to the consequences of abusing either their employer or colleagues in social media.

As an employee beware what you say about work or colleagues, even in jest. Remember that if you post to social media during work hours this can be traced and if you are posting rather too often it won’t be long before you are being invited to justify your conduct at a disciplinary hearing.

I’m a big fan of social media. It has a lot of detractors but I think it is a welcome addition to the way we live. Used in the right way it can do a lot of good in raising awareness and spreading knowledge. I no longer read a paper because if there’s anything major going on it will be on twitter. I don’t want to read about all the other dark and dingy tales that lurk in the side columns, that’s too grim.

I don’t think anyone wants to see social media being censored in the extreme but in the employment context it can have more than minor implications. Prospective employers are checking out candidates on facebook to find out who the real person is. If your photo shows you as a drunken lush and you want to be taken seriously you might think about changing it, at least while you are seeking work. We’ve all heard the anecdote about a man who rang in sick and then posted “duvet day!” on facebook. I mean seriously? What was he thinking? Caveat facebooker!

In the case of Teggart v TeleTech UK Limited the Northern Ireland Industrial Tribunal has held that it was fair to dismiss a male employee for posting vulgar remarks about his female work colleague on facebook. The comments were posted from home, not during work, but they amounted to harassment.

The comments did not bring the employer’s reputation into disrepute (which has previously been cited as a reason for a dismissal around social media and which Tele Tech sought to rely on) but the harassment of a colleague was sufficiently serious as to amount to gross misconduct.

Mr Teggart attempted to rely on Article 8 of the European Convention on Human Rights (right to a private life) but the tribunal held that having made his comments public on facebook he had no reasonable expectation to privacy.

There were inconsistencies in Tele Tech’s investigation but Mr Teggart had accepted the charge in any event and the deficiencies were cured at the appeal stage when Mr Teggart had the opportunity to make further representations before a decision was made.

The decision adds to a growing body of case law around social media and misconduct dismissals. The case highlights that inappropriate or offensive comments made on social media may justify dismissal even when made out of work and in the employee’s own time.

A timely reminder from employers about what their social media policy is would serve as a warning to staff that this kind of abuse will not be tolerated, in the same way that abusing or harassing a colleague in the workplace is not acceptable either.

The case is also useful in that it demonstrates that trying to engage Article 8 of the ECHR is unlikely to succeed as a defence.

Employers can therefore be more confident in making dismissals for gross misconduct on similar grounds and in relying on this case to dismiss any human rights issues. The key of course, to any dismissal, is making sure you get the procedure right.

A report in The Observer this weekend claims that older workers are worst hit by unemployment. Katie Allen’s feature about 60 year old job seeker Anthony Barlow details how Mr Barlow has received literally thousands of job rejection letters and suspected the reason was his age.

Mr Barlow proved his theory by altering his CV, editing his birth date to 1989 and applying for a job as his younger self. He also made an application with his correct age and experience details. The younger applicant was invited for interview. The older candidate was told he did not reach the required standard (even though his CV had more experience).

Among my recently dismissed or redundant private individual clients seeking work it is certain that those over 50 are facing additional hurdles in this economic climate. I predicted when the default retirement age was abolished employers would be reluctant to take on older staff as a result of not being able to force them to retire at 65. Additionally employers are offered additional incentives for creating jobs for young people. The picture does not look too pretty which is a shame. B&Q is the best known retailer which actively seeks older staff. They are statistically more reliable in terms of attendance records, not taking sickies and have less reasons to take time off work (for family reasons). They also have more experience, not just in work, but of life. Employers are missing a trick not to tap into this talent.

Nonetheless, according to Katie Allen the number of over 50s out of work for more than a year has doubled since the recession started and stands near a 15 year high.

This is pertinent information to give to the Employment Tribunals when trying to secure future losses and as evidence of mitigation. If my client is over 50 he or she may well ‘deserve’ a more generous future loss payment. This should ring alarm bells with employers defending claims from older employees. What if, on evidence, it appears the employee in question may never work again? That sounds expensive. Take advice and get it sorted is the message!

In the case of Newcastle Upon Tyne Hospitals NHS Trust v Bagley the Employment Appeals Tribunal has overturned an Employment Tribunal’s prior finding that the hospital had failed to make reasonable adjustments for a disabled employee. The ET had also made an award of £10,000 for aggravated damages against the Trust which the EAT also overturned.

The facts of the case, briefly, were that Mrs Bagley who was a radiographer was injured at work in late 2009 and became disabled within the meaning of the DDA (now Equality Act 2010). She used her entitlement to sick pay and subsequently became entitled to receive Temporary Disablement Allowance. She also claimed state benefits to top up her pay. In Spring 2009 a phased return to work was recommended by Occupational Health. Mrs Bagley was entitled to be paid only for the hours worked under the graded return (this was the Trust’s policy) and she was no longer eligible to receive the Disablement Allowance which was only payable to staff who were completely off work. Mrs Bagley commenced the phased return but became concerned that she could not afford to be on part-time wages but could not work full-time for reasons of her disability. Mrs Bagley used up her accrued holiday to boost her pay but in May 2009 asked in she could apply for Permanent Injury Benefit (“PIB”) (which would top up her salary to 85% of earnings). She then went off sick again and once more was in receipt of the Disablement Allowance. Over a year later the Trust wrote to Mrs Bagley stating that if she was not fit for work termination of her employment might have to be considered. On termination her Disablement Allowance ceased and she started to receive PIB. She brought a Tribunal claim for failure to make reasonable adjustments.

At first instance the Tribunal found that a reasonable adjustments failure had taken place on several counts including:

- For failing to pay the Disablement Allowance or PIB so as to facilitate a phased return;
- For requiring her to agree to a permanent reduction in hours before considering her application for PIB;
- For failure to support her through a “maze” of policies and “washing its hands” of matters concerning Mrs Bagley’s financial problems.

The Tribunal held that this case was at the very top of the Vento guidelines for injury to feelings and awarded her £30,000 for a “hurt that will last forever”. The award against the Trust for aggravated damages was for acting in a high handed and oppressive manner – part of this was the fact that it took the Trust 6 months from the filing of the ET1 for them to acknowledge that Mrs Bagley was disabled.

The EAT found that the tribunal had erred in finding failures in the reasonable adjustment duty. It had also erred in making an excessive injury to feelings award and in making any aggravated damages at all.

The EAT focussed on the fact that the duty to make reasonable adjustments is not a general duty. It is a duty, where there is a PCP which can be identified, and which places disabled people at a disadvantage to non-disabled people, to take such steps as are reasonable to stop the PCP placing them at that disadvantage. In this case a non-disabled person would have been affected in the same way by the confines of the pay policies and therefore there is no comparative disadvantage.

Paying only for work done in a phased return is not a disadvantage. Mrs Bagley was in the same position as anyone else returning to work part-time, for example a new mother wanting family-friendly hours. Also, in line with O’Hanlon, paying 85% of salary for 60% of work would not have been a reasonable adjustment. Imagine the implications of the Trust for other employees if it adopted this policy?

The EAT held that the injury to feelings award was perverse and “manifestly excessive”. The tribunal’s response to the way the Trust had handled the case was overblown. Two letters from the claimant which the Trust had ignored was not a reason to award aggravated damages. In any event the Trust had apologised profusely. The tribunal also made the award based on its criticism of the fact that the Trust had told Mrs Bagley that she would be financially better off remaining at home. This was true. The injury to feelings award was reduced from £30,000 to £11,000 and the aggravated damages was reduced to zero on the basis that none of the conduct of the Trust met the high handed and oppressive test for aggravated damages. The EAT indicated that the tribunal had allowed itself to be carried away by its sympathy for Mrs Bagley.

The upshot of this case, together with the other recent judgment from the EAT in Royal Bank of Scotland v Ashton, is that the reasonable adjustments duty should not be seen as a general duty to support a disabled person. Tribunals must go through the formula of analysing whether there is a PCP, whether it causes disadvantage and whether there are steps which would alleviate that effect.

While offering a phased return to work may be a reasonable adjustment this does not mean that employers should have to pay for work not done.

As one tax year ends and another begins 6 April 2012 ushers in a number of changes to employment law and employment tribunals practice. You know about the changes – we’ve blogged them all before – but by way of summary the key ones are:

1. The qualifying period for unfair dismissal rises from one year to two years. This only applies to new starters who begin employment after 6 April 2012. Employees in employment pre-6 April 2012 continue to have the right to claim UD after one year’s service.

2. Judges will be able to sit alone to hear unfair dismissal cases. The panel or wing members which, to my mind, make a crucial contribution to the legal process, will no longer sit to hear UD cases. A full panel of one judge and two lay members will continue to hear discrimination cases. This means that the judge becomes both the arbiter of the law and the facts.

3. The limit on costs awarded by a Tribunal rises from £10,000 to £20,000. Presumably this is for deterrent effect because the Employment Tribunals are still reluctant to issue costs orders and the rule remains that each party bears its own costs unless some form of unacceptable conduct has taken place during proceedings.

4. In the Employment Tribunals witness statements will be taken as read unless a judge orders otherwise. This is already in effect in some tribunals and has been for some time. There will still be exceptions, at the discretion of the judge, but this means that the parties’ written statements are read by the tribunal (in private) rather than spoken out loud in tribunal by the witnesses. For witnesses this places all the more emphasis on getting your case across fluently and comprehensively in the written statement. There will be opportunities during cross-examination and re-examination to plead your case but gone is the opportunity of reading out your statement during the hearing and getting your point across while making doey eyes at the judge. This does however mean, or should mean, that less time is spent in tribunals.

5. The flat rate for statutory maternity, paternity, additional paternity and adoption pay increases to £135.45 a week. Statutory sick pay increases to £88.85 a week.

Whether you are looking forward to the Olympics, love it, hate it or are indifferent, one thing’s for sure: employers are going to have to manage employee holiday requests with a certain degree of formality this summer. Now might also be a time to take a look at sickness absence procedures just in case turning down holiday requests sees a sudden boost in duvet days.

For example, you may have employees who have tickets for the games and others who are volunteering. Should volunteers get preference over ticket-holders or vice-versa? Should volunteers have preference over other employees requesting holiday at the same time? Do employees with Olympic tickets get preference over other employees who don’t and just want to take ‘normal’ holiday? If employees without tickets who are not volunteers have already booked holidays can you ask them to change their plans to meet your staffing requirements? If you don’t have an issue already you very well might do quite soon.

If you have a first come, first served holiday procedure it’s worth reminding employees now so that they can book off the time they need. If you have to turn down requests you might want to check that the employee does not take that day as sick when it arrives. Get your return to work processes in order and let it be known that if days are taken off as sick you will be asking for self-certification and/or return to work interviews. If fake sick days are taken let employees know that this may be the subject of disciplinary proceedings when they return. The deterrent effect should assist. If several employees want the same day off because of the Olympics how will you decide who gets it and who doesn’t? You need to think ahead.

If employees are going to volunteer are you going to let them take the time off as unpaid leave, as paid leave or make them take it from their annual holiday entitlement? Whatever you decide you need to be consistent across all employees. Have a policy. And implement it. Fair-handedly.

If you’re concerned about absenteeism you might think about whether it is possible to have a TV in the office so that enthusiasts can catch the big events. Offer employees the opportunity to watch coverage and make up time at the end of the day. Or use a big event like the Men’s 100m Final as an excuse for a team get-together. There are ways to manage productivity and not dampen everyone’s enjoyment of a once-in-a-lifetime event. Will you allow staff to watch events on computers? You might want a blanket ban if your IT department says it will overload the system.

As with anything being prepared and knowing where you stand on these issues, ahead of the game (sorry – bad pun), will make the whole thing far more enjoyable for everyone and a whole lot less hassle for employers.

If you want to get to the finish line first (seriously – more bad puns. Ed) and need help, give us a call!