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Archive for September, 2016

Wednesday 28 September 2016

Employment Law Bulletin September 2016

Welcome

Well, that was an uneventful summer wasn’t it? We’re back for another round-up of employment cases and I promise not to mention Brexit at all (apart from then).

There has been a rash of discrimination cases recently so this month’s bulletin is something of a discrimination special. If you like this (albeit accidental) themed approach, let us know, and we might make it a regular thing…

Maintaining pay after a reasonable adjustment

Employers are required by the Equality Act 2010 to make “reasonable adjustments” to assist disabled employees in certain circumstances. One common reasonable adjustment is the provision of alternative work. The disabled employee may no longer be able to do ‘job A’, but if he or she is capable of doing ‘job B’ then offering that alternative work might well be a reasonable adjustment. But what if ‘job B’ is paid at a lower rate? Does the employer have to continue paying the higher salary?

Proving Discrimination

One of the greatest obstacles facing anyone claiming discrimination is that very few employers are prepared to state their prejudices openly – making direct evidence of discrimination very difficult to come by. The Equality Act attempts to redress the balance by switching the burden of proof onto the employer if the employee can put forward enough evidence to support the inference that discrimination may have occurred. This means that an employer will sometimes have to prove that it is innocent of discrimination – provided that there is enough evidence to suggest that it might be guilty.

Indirect Discrimination

Claims for indirect discrimination often involve a request for flexible working to allow the employee to balance work and family life. Statistically, women are overwhelmingly more likely to want to adjust their working hours in order to accommodate their caring responsibilities than men, so any refusal of a flexible working request opens up a potential indirect discrimination claim. In technical terms the employer is applying a ‘provision criterion or practice’, which places women at a particular disadvantage. What the tribunal has to decide is whether the employer’s refusal of the request is a ‘proportionate means of achieving a legitimate aim’. In many workplaces employers themselves see the benefit of flexible working arrangements. But there remain many roles where accommodating the needs of individual employees can be difficult.

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