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 Legal AlertNew and pending laws, regulations, codes of practice and rulings that could have an impact on your businessOn This Page
Update on October legislationIn addition to the new age discrimination, national minimum wage and fire safety reform, the current position on other draft measures previously announced here is:
DTI publishes age-discrimination questionnaireThe Department of Trade and Industry (DTI) has published a questionnaire and reply form that can be used by employees and employers in age-related complaints when the new age-discrimination laws come into force in October. Under the new Employment Equality (Age) Regulations, a person is entitled to write to his or her employer if they feel discriminated against on grounds of age. Use of the DTI questionnaire will help ensure relevant questions are asked. The matching reply form gives the employer the opportunity to say whether they agree with the complainant and, if they do not, they can set out the reasons why. In addition to the questionnaire and reply form, the document contains an introduction to the newly introduced questions procedure, as well as explanatory notes on the scope of the new Regulations. These include:
Further Information Download the questionnaire from the DTI website. ‘No smoking’ job adverts are not discriminatoryAs employers in England and Wales prepare for next summer’s workplace smoking ban, a recent EU statement confirms that a job advert stating ‘smokers need not apply’ does not contravene discrimination laws. The statement was made in a written answer by the EU Commissioner for Employment, Social Affairs and Equal Opportunities to a question raised by a Scottish MEP. While discrimination on grounds of racial or ethnic origin, disability, sexual orientation, religion or belief, or (from October) age, is prohibited, the Commissioner stated that such an advert does not fall within any of those categories. The policy of hiring non-smokers has been followed by the World Health Organization since December 2005, as part of its commitment to controlling tobacco use. However, many employers recruit only non-smokers where there is a clear occupational reason why smoking is not permitted. This EU statement applies only to recruitment advertising. It does not follow that an existing employee can be dismissed simply for being a smoker, unless their activities breach workplace rules. Businesses have until 9 October to take part in the Department of Health consultation process on draft Regulations for the proposed smoking ban in England and Wales. Territories - England and Wales Further Information Download the consultation paper from the Department of Health website . Case law: sick-pay policy for employees with disabilitiesA recent tribunal ruling has clarified that employers can treat employees with disabilities the same as other employees when it comes their sick-pay policies. In this case, the employer’s sick-pay rules provided that anyone absent from sickness would receive full pay for 26 weeks in any four-year period and thereafter half pay for the next 26 weeks, then the pension rate of pay. The employee had lengthy absences from work, most of which were related to her disability. She claimed she was entitled to full pay for her absences; and that failure to make such payments was a failure to make reasonable adjustments under the Disability Discrimination Act and constituted unjustified disability-related discrimination. The Employment Appeal Tribunal (EAT) found that a reasonable adjustment did not require any increase in sick pay; it also found there was disability-related discrimination, but that such discrimination was justified. This case confirms that only in exceptional circumstances will an employer be required to give full pay to an employee with disabilities on sick leave where an employee without disabilities is not so entitled. Such circumstances might arise where the employer’s failure to make reasonable adjustments to the working environment is the cause of the disability-related absence.
Further Information See the full text of the judgment on the British and Irish Legal Information Institute website. Case law: employer pays out �800,000 in workplace bullying caseManagers have received another stark reminder of the need to take their responsibilities concerning bullying and harassment at work very seriously, as one employer is forced to pay �800,000 in a new bullying case. Last month we reported on a case that emphasised that firms need be able to show not only that they have effective measures in place to prevent bullying and harassment, but also that they are monitoring the situation. Now, in another case, an employee has won substantial damages from her employer in a personal injury claim, where the bullying and harassment resulted in psychiatric illness. In this latest case, it was established that a ‘relentless campaign’ of bullying had taken place, and the employer should have done more to prevent it. In awarding the damages, the High Court included a significant amount for future loss of earnings, because it anticipated that the employee would not be able to work at her previous salary level for some time to come. The court also upheld a claim brought by the employee under the Protection from Harassment Act 1997 (a law originally aimed at preventing stalkers, but now being used increasingly by employees in bullying and harassment cases), but did not make a separate award in view of her success on the personal injury claim. Nevertheless, there is now a wide range of provisions that employees can turn to in bullying cases. In particular, the fact that, under the 1997 Act, employers cannot rely on the defence that they ‘took all reasonable steps’ to prevent harassment, means they must ensure that they did everything they possibly could to prevent bullying and harassment.
Further Information Download the leaflet ‘Bullying and harassment at work: a guide for managers and employers’ from the ACAS website. Case law: duty of care relating to wasteBusinesses that place controlled waste refuse on public land or highways for collection risk prosecution unless they comply with guidelines concerning collection times. In a recent High Court case, a firm was prosecuted under the Environmental Protection Act for putting bags of commercial waste out for collection before 7am, even though notices distributed by the council stated that waste could only be placed for collection between 9am and 10.30am. The court established that a business commits an offence if it fails to take reasonable steps to prevent the ‘escape’ of waste. In this case, by depositing the waste on a highway a significant period of time before collection was permissible, the business had materially increased risk of an escape, and had therefore failed to take reasonable preventative measures. Because an actual escape of waste doesn’t even have to have occurred for an offence to have been committed, businesses should only put rubbish out for collection at recommended times.
Further Information See the full text of the judgment on the British and Irish Legal Information Institute website. Case law: ‘grossly offensive’ telephone callsIn a recent case, the House of Lords has ruled that ‘grossly offensive’ comments made over the telephone – which can include comments made to you or your employees by customers, suppliers or others – can lead to prosecution under the Communications Act 2003. The case concerned a person who, over a period of two years, made numerous telephone calls to, and left telephone messages for, his Member of Parliament. The messages contained terms of racial abuse that would be found to be ‘grossly offensive by a reasonable person’. The court considered that, for the offence to be committed, the person making the comments had to intend his words to be grossly offensive to those to whom they related, or be aware that they might be taken to be so. Beyond that, however, it was immaterial whether the recipient of the message was in fact offended. The significance of this ruling for businesses is that such calls may be reported to the police.
Further Information See the full text of the judgment on the UK Parliament website. Case law: formal risk assessment for disabled employee not requiredIn a recent case, a woman employed as a mobile library manager developed a degenerative knee condition, which meant that she was unable to drive the vehicle. Her employer considered the possibility of making various adjustments, but without carrying out a formal risk assessment, and concluded that none of the adjustments could be made. The employee claimed unfair dismissal on the ground of disability discrimination and the Employment Tribunal upheld her claim, finding that the employer should have carried out a formal risk assessment. However, the decision was overturned by the Employment Appeal Tribunal, which considered that the Employment Tribunal had wrongly dismissed the assessment, made by two occupational health physicians and the employee’s two orthopaedic surgeons. There was no requirement to carry out a ‘formal risk assessment’, but an assessment had to be made which met the facts of the situation. In the light of this case, it will only be necessary for an employer to show that it has given serious consideration to the adjustments that could be made to the employee’s working environment, and to demonstrate that its conclusion is based on objective evidence.
Further Information See the full text of the judgment on the UK Parliament website. Case law: time limits in discrimination claimsEmployees may have more time from the date of a grievance to bring a discrimination claim, according to a recent Employment Appeal Tribunal (EAT) ruling. Some uncertainty has existed over the interaction between various legal rules governing time limits within which discrimination claims must be brought. This uncertainty has now been removed by the EAT. The EAT considered:
It decided that earlier legislation could override the strict application of the time limit in the 2002 Act. Accordingly, employers need to be aware that an employee may be entitled to pursue a discrimination action more than four months after the act of discrimination complained of.
Further Information See relevant pages on the Disability Rights Commission website.
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