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Thursday 13 July 2017

MH Employment

Making Adjustments for Disabled Employees and Job Applicants

Disability as a Protected Characteristic

The Equality Act 2010 (the “Act”) protects, amongst others, employees and job applicants who have a disability, which is a protected characteristic under the Act. The Act considers a person to have a disability if they have a physical or mental impairment which has a substantial and long-term effect on their ability to carry out normal day-to-day activities. Some conditions such as cancer and multiple sclerosis, for example, fit clearly into this category, whilst other conditions, for example Asperger’s syndrome, dyslexia, and other mental conditions such as depression, are not self-evident and may only impact or become evident in particular situations. Employers need to be particularly careful about making adjustments for these less ‘obvious’ disabilities, as the Government Legal Service (GLS) recently discovered to its detriment.

In the case of Government Legal Service v Brookes UKEAT/0302/16, the Employment Appeal Tribunal (EAT) upheld the decision of an Employment Tribunal (ET) that by requiring a job applicant with Aspergers to take a multiple choice test as part of a job application, the Government Legal Service (GLS) was liable for indirect discrimination.

Tuesday 27 June 2017

MH Employment Update

Calculating a Day’s Pay

If someone earns an annual salary – how do you work out a ‘day’s pay’? You might think that this would be a straightforward question – but far from it. Most employment law deals with a week’s pay or – in the case of paid annual leave under the Working Time Regulations – a proportion of a week. To think about a day’s pay you have to refer to the Apportionment Act 1870 – and even then, the answer is not entirely clear.

Friday 26 May 2017

MH Employment Update

Indirect Discrimination

Considering that the concept of indirect discrimination was introduced in the mid-1970s, you might have thought that the main issues would have all been sorted out by now. But in two joined cases the Supreme Court has had to set the Court of Appeal right on a couple of key points.

In Essop v Home Office civil servants were required to pass a written test in order to qualify for promotion. An impact assessment revealed that Black and Minority Ethnic (BME) staff were significantly less likely to pass the test than others – although there was no indication as to why that was. A group of them brought an indirect race discrimination claim on the basis that the requirement to pass the test placed BME staff at a particular disadvantage and that the requirement could not be justified as a proportionate means of achieving a legitimate aim. The Court of Appeal held, however, that in order to show that the individual Claimants suffered the same disadvantage as the group of BME staff as a whole, it was necessary to show why BME staff were more likely to fail and that the individual Claimants had failed the test for the same reason.

In Naeem v Ministry of Justice the issue was the pay of prison chaplains. Muslim chaplains, on average, earned less than Christian chaplains. This was because their pay scale was based on length of service and Muslim chaplains – who had only been recruited since 2002 – tended to have shorter service than their Christian counterparts. The Court of Appeal rejected claims of indirect discrimination based on religion or belief on the basis that it was clear that the reason – length of service – that Muslim chaplains were placed at a disadvantage was nothing to do with their religion.

Tuesday 4 April 2017

MH Employment Update

Employment Status…….again

The issue of who is an ‘employee’, who is a ‘worker’ and who falls into neither camp is clearly going to be one of the big issues of 2017. Following on from the Uber and Deliveroo cases we highlighted in our November 2016 bulletin, headlines were made recently by the case of Pimlico Plumbers Ltd v Smith in which a plumber is claiming that he should be able to bring a range of employment law claims even though his contractual documentation stressed that he was self-employed.

Mr Smith was engaged by Pimlico Plumbers in 2005. Many of the features of his work were clearly inconsistent with being employed under a contract of employment. He was responsible for purchasing his own raw materials, for example, and was able to charge a ‘mark-up’ to the company when he used them in the course of his work. He also took full advantage of his self-employed tax status by setting off a considerable amount of his earnings as expenses, and was registered for VAT. It could not have been a surprise that the employment tribunal ruled that he was not an employee and could not bring a claim for unfair dismissal.

Thursday 16 March 2017

MH Employment Update

New Trade Union Act

The major provisions of the Trade Union Act 2016 came into force on 1 March, 2017. This means that from now on industrial action ballots will only be lawful if at least 50 per cent of those being balloted cast a vote. Where the majority of those being balloted are engaged in ‘important public services’ then there is an additional requirement that at least 40 per cent of those entitled to vote, vote ‘yes’. That means that if there are 100 union members(let’s keep the maths simple), then a 26-25 vote in favour of industrial action will be sufficient in most cases but a 40-10 vote (or better) will be needed in cases involving those key services.

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