Welcome to the latest edition of "e-news"
from Steele & Co Solicitors. In this issue we report on:
* DISABILITY DISCRIMINATION - DUTY TO CONSIDER POSSIBLE ADJUSTMENTS
* BANKER SACKED FOR DYSLEXIA TAUNTS SEEKS £500,000.00
* OFFENDED EMPLOYEE AWARDED £7,000.00
* NEW RIGHTS TO FORCE EMPLOYERS TO CONSIDER PART-TIME WORK REQUESTS
* EMPLOYEE SACKED FOR SMOKING AT HOME
DISABILITY DISCRIMINATION - DUTY TO CONSIDER POSSIBLE ADJUSTMENTS
The recent case of Cosgrove v Caesar & Howie decided that when employers are
faced with claims for disability discrimination from employees on long term
sick leave, comparisons need to be made between the employee on sick leave
and an employee at work. This is based on the notion that there would be no
reason to dismiss someone who was attending work, unless some other reason
(apart from a disability) existed.
Importantly, the case also commented on the employer's duty to make
reasonable adjustments. In this instance neither the employee or her doctor
were able to think of any reasonable adjustments that could be made to her
employment. The EAT decided that even in such circumstances, the employer
must at least consider what, if any, adjustments could be made.
If you have an employee on sick leave who could potentially bring a claim
for disability discrimination, you must consider and document what
adjustments could be made, even if they are not implemented, if you are to
realistically show that a decision to dismiss was justified.
BANKER SACKED FOR DYSLEXIA TAUNTS SEEKS £500,000.00
A dyslexic banker who was sacked by his employers for allegedly
under-performing has won his claim for disability discrimination.
It is reported that the employee was taunted by work colleagues with the
nickname "Trebor", which is his name spelt backwards, and that this had
stirred up unhappy memories from his school days.
The employee claimed that the employer had failed to help him achieve
targets and discriminated against him because of his dyslexia.
Eventually, when the employee failed to reach his targets, he was fired
after 11 months service and before the end of his probationary period.
The tribunal chairman is reported as saying: "At no stage did the firm
consider obtaining expert advice about whether the employee's disability
might be a cause of his lack of ability during training". He further
commented that the employee should have been given a full year to improve
his skills. Instead, it treated him as a "non-disabled person who simply
lacked the capability to acquire the necessary skills and reach the bank's
standard".
A further hearing will be held to determine the level of compensation to be
awarded to the employee.
It is important, as indicated from this case, for employers to fully
investigate any under-performance on the part of the employee. It may be
that the employee has a condition, which may amount to a disability within
the definition of the Disability Discrimination Act 1995, that is affecting
performance.
We recommend that employers consider the implementation of a structured
performance policy to deal with issues of under-performance. Cheryl Edmonds,
Partner of Steele & Co. and Head of the London Employment team comments
"dealing with poor performance is one of the most difficult jobs for any
manager and it is vital therefore to have a policy in place and to train
managers on how to tackle issues of poor performance. A failure to deal with
poor performance will not only result in poor productivity but will also
have a knock on effect by lowering the morale of other staff who may feel
that they are carrying the burden of the poor performing employee".
OFFENDED EMPLOYEE AWARDED £7,000.00
It has recently been reported that a part-time employee of the clerk to the
council at Croxley Green, Hertfordshire has been awarded £7,000.00 by an
Employment Tribunal after she was dismissed for pursuing a grievance.
The grievance concerned her superior who it is reported 'regularly filled
the air of his small office with lewd talk, topics more suited to his former
life as a soldier than to a council agenda'.
The employee is reported to have walked out of her employment and was then
granted extended leave of absence while her grievances were investigated.
She then received a letter dismissing her from her post.
The employee claimed unfair dismissal and sex discrimination.
It is important to remember that an employee may bring a claim for sex
discrimination even though, when viewed objectively, the behaviour
complained of is not offensive. It is the reaction of the employee to such
behaviour which will be forefront in the Employment Tribunal's mind i.e. it
is a subjective test. Additionally it is important to remember that the
motive and intention of the alleged discriminator is irrelevant.
NEW RIGHTS TO FORCE EMPLOYERS TO CONSIDER PART-TIME WORK REQUESTS
Two Employment Tribunal rulings last week have sent a clear message to
employers that they should be considering requests from parents for flexible
working, and granting them wherever possible.
A vehicle technician who was refused a request to work part-time to meet
childcare responsibilities, won his claim for sex discrimination last week.
The Tribunal found that his company "gave no meaningful consideration" to
his request and that they would have agreed a request from a woman in
similar circumstances.
In another successful case, a former police constable won her appeal against
her employers because they refused her request to work the same days each
week to fit in with her children's nursery.
Proposals were announced last week by the Trade and Industry Secretary,
Patricia Hewitt, following a report by the Government's task force, to give
parents the legal right to ask to work part-time.
This right will only apply to parents of children under six years of age or
disabled children up to the age of eighteen.
The new right will be to have a request for changed hours seriously
considered by employers. Employers will be entitled to refuse such a request
on business grounds, provided they have abided by a Government-set process
of consideration.
EMPLOYEE SACKED FOR SMOKING AT HOME
A sales executive intends to sue his employers for breach of contract after
they allegedly sacked him, two days into his job, because they discovered he
smoked at home.
The employee knew about the company's no smoking policy but reasonably
assumed this only extended as far as the workplace and to his company car,
not to the confines of his own home in his own time.
This employee's claims are limited because he does not have the one year
qualifying period to bring a claim for unfair dismissal. If he did, then
arguably he would be assured of a successful result. Employers, however,
should take heed of the fact that absence of the qualifying period for
unfair dismissal does not eliminate all liability since there is no minimum
service requirement for breach of contract claims.
WE CAN HELP YOU:
Please use the links on this page if you:
* Want to receive more information/advice on any of the matters in
this edition (please give details of the matter you require advice on).
* Want advice on any employment matters
* The employment team also conducts practical in-house training and
workshops for companies on a wide range of issues including:-
Managing sickness absence/stress in the workplace
Misconduct and the disciplinary procedure
Poor performance
Handling redundancy situations
Avoiding unlawful discrimination claims
Avoiding unfair dismissals
Employment law update and practical advice for line managers
* Our aim is to offer line managers practical training to ensure that
costly mistakes are avoided. All of the training workshops are tailored
to meet the exact requirements of each individual business.
* If you are interested in finding out more about such training please
do not hesitate to give us a call.
Visit our web site http://www.steeleslaw.co.uk
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