employment law news - July 2010 - print version
vetting and barring scheme registration halted
The Government has announced that it is halting the planned
registration of employees and volunteers under the vetting and
barring scheme introduced by the Safeguarding Vulnerable Groups Act
2006. In October last year we reported on the scheme which, amongst
other obligations, requires employees and volunteers to be
registered with the Independent Safeguarding Authority (ISA) in
connection with "regulated" and "controlled" activities with
children and vulnerable adults. The Act is being implemented in
phases. Voluntary registration was due to begin on 26 July 2010 and
compulsory registration from November 2010, starting with new
appointments. It is the voluntary registration which is being
halted while government departments review the scheme amid concerns
that it is disproportionate and overly burdensome.
However, other provisions already in place are not affected. A
wider range of people and activities are caught under the new
regime – please
see our client information sheet, Safeguarding Vulnerable
Groups for further details. Since October 2009, the
Act makes it an offence to permit a barred person to carry out
these activities, and introduces a duty on employers and personnel
suppliers to refer certain information to the ISA when a person
stops carrying out such activities because they have:
- harmed or may harm a child or vulnerable adult,
- engaged in "relevant conduct", or
- committed certain barring offences.
These provisions remain effective. The criminal offences
relating to engaging non ISA-registered workers and failing to make
registration checks will be postponed pending the review.
Budget highlights for employment law
The "tough but fair" budget announced by the Coalition
Government on 22 June has not thrown up too many employment law
issues, but some notable measures of interest to employers include
a potential shift in emphasis on the Default Retirement Age (DRA)
and a new way of uprating benefits.
As reported last month, the Government had confirmed its
intention to phase out the Default Retirement Age (DRA) as
expressed previously by both of the Coalition parties. However
during the budget speech this was changed to a consultation on
"whether to phase out the Default Retirement Age". The Chancellor
announced that from April 2011 the majority of benefits, presumably
including Statutory Maternity Pay, Statutory Sick Pay etc will be
uprated in line with the Consumer Price Index rather than the
Retail Prices Index. This is to effect £6 billion a year in savings
without imposing a benefits freeze. The threshold at which
employers start to pay National Insurance will also rise by £21 per
week above indexation from April 2011. Additional savings are to be
made by freezing public sector pay and reviewing the pay of top
public sector bosses.
Separately on 21 June the Government also accepted the
recommendations of the Low Pay Commission regarding the National
Minimum Wage (NMW) rates for October 2010, including reducing the
age of the adult rate to include those aged 21,
and introducing a NMW for apprentices who are currently
exempt. As reported in May's employment law news, these
rates had already been accepted by the previous government but the
Coalition has confirmed they will go ahead as expected.
disability discrimination: discrimination on grounds of
perceived disability
Two recent cases have attempted to introduce the concept that a
person is protected under the Disability Discrimination Act 1995
(DDA) against discrimination for a perceived disability, even if
they do not in fact have a disability. The cases relied on the
decision in Attridge Law v Coleman which established
that under EU law, the DDA should be interpreted to protect those
discriminated against because of the disability of another (in that
case, Ms Coleman's disabled son). However in both cases the EAT has
rejected the argument that this extends to persons with a perceived
disability, although neither case can be said to be a definitive
answer on the subject.
In the first case, it was argued that a police officer with
Obsessive Compulsive Disorder (OCD), who had acted aggressively and
intimidated colleagues, was discriminated against on grounds of his
perceived dangerous mental illness. In fact he did not have such a
dangerous mental illness. The EAT did not accept that EU law
covered action taken because of a mistaken perception that a person
has a disability. The DDA did not therefore have to be interpreted
in this way. In 2008 the Court of Appeal concluded that a man
subjected to homophobic banter, even though he was not genuinely
perceived to be homosexual, was protected from such harassment
under the Employment Equality (Sexual Orientation) Regulations
2003. Although that case envisaged that a person mistakenly
perceived to be homosexual would be protected, the wording of the
sexual orientation and other discrimination regulations was
different from the DDA. The DDA specifically refers to "the
disabled person's disability" and "a person who has a disability".
Discrimination must relate to an actual disability, even if, under
EU law, that is the disability of another. However arguably this
conclusion is still open to challenge, because the ET's findings of
fact meant that the question in the EAT was academic.
In the second case, a job applicant had her job offer from a law
firm withdrawn when she disclosed her history of depression. The
firm cited a recruitment freeze as the reason. However when an ET
held that she was not disabled, she argued in the EAT that she had
been discriminated against based on a perception of disability. Her
argument was not allowed as she had not raised this in the ET, but
in any event it was considered, similarly to the first case, that
Coleman did not require an extension of protection to perceived
disabilities. This will be a relief to employers although the
position could be changed if an appropriate case was referred to
the European Court of Justice.
Another noteworthy conclusion of the EAT in the second case was
that a GP is fully qualified to express an opinion on whether a
patient is suffering from depression. More weight may be given to
the conclusions of a specialist, but a GP's evidence may not be
ignored if a specialist gives inconclusive evidence or has not seen
the patient.
confusion over implementation of Equality Act 2010
With the Equality Act 2010 pushed through in Labour's last month
in office, the question of its implementation under the new
Government has been the subject of much speculation. Although
generally in favour of the Act, the Coalition Government is likely
to change some aspects of it and whether it will come into force on
1 October this year has also now been called into question.
The Conservatives broadly supported the Act but pledged to do
away with the new socio-economic duty, the provisions on positive
action and gender pay reporting. However the Liberal Democrats
wanted to introduce mandatory pay audits for all companies with
more than 100 employees, and it remains to be seen how this
difference between the two will be worked out. The Coalition
Programme simply says "we will promote equal pay and take a range
of measures to end discrimination in the workplace".
Meanwhile much was made of the fact that the implementation date
for most of the Equality Act (1 October 2010) was recently removed
from the Government Equalities Office website. The GEO has now
issued a statement (http://www.equalities.gov.uk/equality_bill.aspx)
that the Equality Act's provisions will come into force at
different times to allow people and organisations to prepare for
them, and that this is currently being considered by the
Government. The GEO continues to work on the basis that the core
provisions will come into force in October 2010. With other
pressing issues for the Government, and the silence so far on what
parts of the Act will be shelved or amended, it will be surprising
if it goes ahead in October. However until further information is
available, employers should assume that it will do, to avoid being
caught out.
disability discrimination: roles ought to have been swapped as
a reasonable adjustment
A failure to make reasonable adjustments for an employee who is
disabled under the Disability Discrimination Act 1995 (DDA) has
become increasingly important for claimants in the light of a House
of Lords Decision in 2008 (London Borough of Lewisham v
Malcolm) which restricted the scope of disability-related
discrimination. The duty to make reasonable adjustments arises
where a provision, criterion or practice (PCP), or physical feature
of a premises, puts the disabled person at a substantial
disadvantage compared with others. The employer has to take steps
that are objectively considered reasonable to prevent the
disadvantage. Examples of reasonable adjustments appear in the DDA
itself, but the EAT has recently concluded that it may include
swapping the roles of a disabled employee and a non-disabled
employee, so that the disabled employee can continue in
employment.
After five years' uneventful service in the police force,
Mr Jelic developed chronic anxiety syndrome. It was recommended
that he work reduced hours in a non-confrontational officer role.
After gradually increasing his hours, he continued in this
"recuperative" role for three years. However, it was not likely
that he would return to front-line police officer duties before
retirement, and with very little consultation he was retired on
medical grounds. He brought an Employment Tribunal claim for
failure to make reasonable adjustments. The EAT agreed with the ET
that reasonable adjustments ought to have been made. Maintaining
the recuperative role was not a reasonable adjustment in view of
the changing needs of the unit and the civilianisation of roles not
requiring a police officer, but Mr Jelic could have been swapped
into the role of another police officer. The other role was very
similar and the nature of the police force meant that the officer
could have been ordered to move into Mr Jelic's public-facing role.
Each case depends on its facts, including the skills and
circumstances of the non-disabled employee. However employers
should be aware of this potential reasonable adjustment in suitable
cases.
Although the effect of Malcolm is to be changed under the
Equality Act 2010, the concept of reasonable adjustments remains in
a form very similar to that under the DDA.
accumulated untaken annual leave may not be reduced to reflect
part time hours
The European Court of Justice (ECJ) has held that untaken leave
which accrued when an employee worked full time cannot be reduced
to reflect new part time hours. In Austria civil servants who
changed their number of working hours had their untaken annual
leave allowance adjusted proportionately, even though it had
accrued during the period before their hours were changed. The ECJ
agreed that this was in contravention of EU law and in particular
the right of part-time workers not to be treated less favourably.
The amount of leave should not differ if it is taken after the
period in which it accrued, even though a worker's hours may have
changed. Thus a worker who changes their hours from full time to
part time on their return from parental leave, maternity leave, and
now, following HMRC v Stringer, sick leave, would be entitled to
all untaken holiday which accumulated while they were full time
even if it is taken in the following holiday year.
The judgment throws another spanner in the works for the WTR.
The WTR provide for leave to be calculated by reference to a week's
pay at the time the leave is taken, not when it was accrued. It is
to be hoped that the review of the WTR promised by the last
government will be carried out.
conditional resignation did not determine effective date of
termination
The EAT considered whether the effective date of termination was
when a conditional resignation was given, or the date when the
resignation was confirmed unequivocally.
A recent EAT decision has highlighted that when it comes to
deciding the effective date of termination of employment in an
unfair dismissal claim, the deciding factor is what actually
happened between the parties and not what the parties wished or
agreed. This was the issue in a recent case where the EAT had to
decide whether the employee's claim was brought out of time.
The employee wrote a letter of resignation to his employer on
the 29 August 2009. It was a conditional resignation depending on
two factors, with the result that the resignation was not definite
and the employer could not action it. Correspondence went forwards
and backwards between the employee and employer about trying to
come to some sort of agreement. On the 3 September the employee
sent another email to the employer stating that he was actually
resigning and that his resignation was effective from the 29
August. The employer wrote back and accepted the employee's
resignation. The ET decided that the email sent on the 3 September
was clarity for the conditional resignation letter sent on the 29
August and that the effective date of termination was therefore 29
August. This meant that his claim was out of time.
In the EAT, this finding was reversed. It was held that the
effective date of termination for unfair dismissal claims was a
statutory construct which could not be deviated from. The letter
sent on the 29 August by the employee was conditional; it was not
an unequivocal resignation. This could not be seen as the day the
employment contract was terminated despite what the parties
thought. The unconditional resignation sent on the 3 September
determined the effective date of termination and it could not be
backdated either by the employee or the employer. The claim was
therefore presented in time.
