Disability Discrimination - Reasonable Adjustments

The EAT has held that an employee may be put at a substantial disadvantage by a provision, criterion or practice (“PCP”), even if that PCP is not directly applicable to that particular employee.

In the case in question, the employee was exempt from the employer’s practice of “hot-desking” on the basis that he had a social anxiety disorder (which was deemed to be a disability). The practice of hot-desking exacerbated his condition and his employer therefore allocated him a fixed desk in the hot-desking room. It subsequently transpired that the desk was not always left free for him and on a number of occasions he had to ask his colleagues to vacate the desk.

The employee resigned and made a number of claims, including a claim that his employer had failed to make reasonable adjustments by failing to secure the availability of his specially allocated desk. The EAT concluded that there was no requirement for the PCP to be applied to an employee in particular for that employee to have been put a substantial disadvantage by it.

What do I need to know?
The facts in this case were quite unusual and it may be rare for such specific circumstances to occur. However, employers who believe that they have eliminated the risk of a discrimination claim by making an exception for a disabled employee need to bear this case in mind and ensure that any reasonable adjustments that have been proposed have actually been implemented.

Pensions Auto-enrolment Update

The government have confirmed that the deadlines for pensions auto-enrolment will now be delayed for small businesses.

The scheme will still begin on time, with large businesses with over 250 employers having to begin implementing auto-enrolment from October this year and have completed the task by 1 February 2014.

However, a revised staging programme has now been released for businesses with less than 250 employees. Government reasoning behind this revision is to ease the burden of implementing the reforms on small businesses, particularly in light of the ongoing difficult economic conditions.

The revised implementation dates are as follows:

• 50 – 249 employees: implementation between 1 April 2014 and 1 April 2015
• 30 – 49 employees: implementation between 1 August 2015 and 1 October 2015
• Fewer than 30 employees: implementation between 1 January 2016 and 1 April 2017

In addition, employers who begin trading between April this year and September 2017 will have various staggered dates to implement the auto-enrolment scheme. Businesses that begin operating from October 2017 will have an immediate responsibility to implement auto-enrolment.

Watch this space for further updates as the various auto-enrolment dates approach!

Redundancy and Offers of Alternative Employment

The EAT has held that in a redundancy situation, when considering whether an employee has reasonably refused an offer of alternative employment, the correct approach is to ask whether the employee in question acted reasonably in refusing the offer. The test to the question of reasonableness is not an objective one.

What do I need to know?
This case serves as a reminder that when considering the question of whether an employee’s refusal of alternative employment is reasonable, the answer will depend on the subjective factors that the employee has for rejecting it. This should be particularly borne in mind if the employer has made an offer of alternative employment and then seeks to withhold redundancy payment on the basis that the offer has been unreasonably refused.

Supreme Court Decision Limits Compensation for Breach of

Contractual Disciplinary Procedures

The Supreme Court has issued an important decision confirming that employee claims for breach of contractual disciplinary procedures, do not give rise to claims for compensation in excess of that available for unfair dismissal.

This ruling concerned two joined cases, the facts of which are lengthy and would not serve to be reproduced in this bulletin. The principles, however, are noteworthy:

• The employees involved sought large sums of compensation for career-long lost earnings where their employers failed to follow contractual disciplinary procedures.
• The decision confirms that employees will only be able to recover damages for loss suffered as a result of such a breach if that loss suffered can be said to preclude and be independent of the actual dismissal.
• In summary, this case curtails an employee’s ability to claim large amounts of compensation by alleging that their employer has failed to adhere to a contractual disciplinary procedure.
• Instead, the Supreme Court has confirmed that compensation for the manner of the dismissal is limited to the amount which the employee can recover by way of an unfair dismissal claim which, in turn, is limited by a statutory cap (a cap of Ł72,300 from 1 February 2012).

What do I need to know?
This case signals good news for employers in so far as it reins in the amount of compensation available for breach of contractual procedures. However, employers should not become complacent. Whether a fair procedure was followed in relation to a dismissal is a key element considered by the Tribunal when deciding whether an employee has been unfairly dismissed. Further, if a finding of unfair dismissal is made, a failure to follow a fair procedure (in breach of the ACAS code) can result in an uplift in an employee’s compensation of up to 25%. Employers should therefore remain on their guard, particularly if certain procedures are deemed to form part of an employee’s contract of employment.

Working Time Opt-out, Overtime and Detriment

The EAT has held that a worker who refused to opt-out of the 48 hour working week did not suffer a detriment when his employer refused him the opportunity to work overtime.

In reaching this decision, the EAT considered that the employer had refused the employee the offer of overtime in an attempt to ensure that the employee was not forced to work in excess of the 48 hour week limit, a right that the employee himself had chosen to exercise. The employer had not taken this decision to penalise the employee or to force him to opt out of the 48 hour working week.

What do I need to know?
Notwithstanding the above case, employers should remain wary of acts of victimisation in circumstances such as these. Victimisation will be shown where an employee is subjected to a detriment as a result of their decision to opt-out and the employee’s decision to opt out is a material factor in the employer’s decision to subject the employee to that detriment.

The HR Exchange : Next event - 8 March 2012

Finally, just a reminder that our next HR Exchange event will be held on 8 March 2012 at the Oswaldtwistle Mills conference centre.

The discussion theme is “Social Media in the Workplace – Friend or Foe”, a topic that is relevant to the majority of employers, large and small. It promises to be a great session with guest speakers, advice on how to manage social media in your business and plenty of opportunity to share experiences with other business owners and HR professionals.

Places are limited, so if you haven’t already booked your space, be sure to submit a form as soon as possible. Relevant details and the booking form can be found on the website:
http://www.thehrexchange.co.uk/

We look forward to seeing you there!