January 8 2007 Employment Law Enews

Welcome to the latest employment law e-newsletter.

When is the duty to make reasonable adjustments triggered?

The duty to make reasonable adjustments is a key element of the Disability Discrimination Act 1995 (DDA), but it has not always been easy to establish when this duty is triggered.

In the recent case of NCH Scotland v McHugh, the employee concerned was on long-term sick leave. Ms McHugh, a social worker, was signed off sick with depression in April 2001. It was originally hoped that she would be able to undertake a phased return to work but there were no vacancies in the team she was hoping to work in. She made a number of requests for early retirement on health grounds, but it was decided that she did not fulfil the necessary criteria. She therefore remained on sick leave until May 2004, when she resigned. Her claim for constructive dismissal failed but her claim for disability discrimination was upheld by the tribunal on the basis that her employer had failed to consider making reasonable adjustments in order to facilitate her return to work.

The Employment Appeal Tribunal (EAT) has now upheld the employer's appeal. It was confirmed that the duty under the DDA is limited to making, not considering reasonable adjustments. It further held, following Court of Appeal authority on the point, that the duty to make reasonable adjustments had not in fact arisen before Ms McHugh had submitted her resignation. The EAT found that at all relevant times Ms McHugh was either unwilling or unable to return to work. It was not necessary for the employer to pursue options for facilitating a return to work until there was "some sign on the horizon" that Ms McHugh would be returning. On the facts of this case, there was no indication that Ms McHugh was able to return and indeed she was seeking to retire on ill-health grounds. In addition, if an adjustment would not cure or limit the substantial disadvantage suffered by the disabled person, the EAT confirmed that it cannot be reasonable under the DDA to make it.

It was significant in this case that the employee was seeking ill health retirement (and so by implication wanted to leave employment), and she had also directed that all correspondence should be sent to her solicitor. In most cases, however, employers would still be prudent to make enquiries of the employee as to what could be done to facilitate a return to work, unless it is equally clear that the employee is either unable or unwilling to return.

Agency workers and implied contracts of employment

The case of James v Greenwich Council has recently offered much needed clarity on the issue of agency workers and their employment status. The case concerned an agency worker, Mrs James, who had worked for Greenwich Council for five years. In deciding whether an implied employment contract had arisen between Mrs James and the Council, the Employment Tribunal considered the 2004 Court of Appeal decision in the case of Dacas v Brook Street Bureau (UK) Ltd ("Dacas") and made some important observations and comments about that decision.

It is a well established principle that for an employment relationship to exist there must be mutuality of obligation between employer and employee. This is commonly in the form of the employee agreeing to provide work or a skill in return for which the employer provides a wage or other remuneration. There must also be a sufficient degree of control by the employer over the employee.

Dacas

The Dacas decision was somewhat controversial as it held that an employment relationship existed between a worker and the local authority for whom she worked, despite the fact that she was paid by the agency. Dacas also suggested that whilst time alone was not a determinative factor, in cases where arrangements had been in place with the same agency worker for in excess of a year, there would be a strong argument that a contract of employment could be inferred between the worker and the organisation they worked for.

James v Greenwich Council seems to retreat to a degree from the Dacas principles. The tribunal held that there was insufficient mutuality of obligation between Mrs James and the Council. While Mrs James was on sick leave, the agency provided the Council with another worker; she was not entitled to any remuneration or benefits such as sick pay during her sick leave and there was an absence of any obligation on the part of the Council towards her. The tribunal found that the control which the Council exercised over Mrs James was not, on its own, enough to imply a contract between the two parties.

The Employment Appeal Tribunal (EAT) dismissed Mrs James' appeal and further held that a key feature in the case was that the Council could not insist on the agency providing Mrs James to do the work. The EAT took the view that when arrangements between the parties are genuine and there has been no previous employment relationship with the individual, then it will be very rare that a tribunal will be able to intervene and infer a contract between the 'end-user' and the worker. The EAT also disagreed with the suggestion in Dacas that the length of time for which the worker has worked for the end-user is significant and reiterated that passage of time alone is not enough.

This case may come as welcome news for employers. However, it should be read with caution. The EAT was keen to remind the parties of the fact that agency workers 'are highly vulnerable and need to be protected from the abuse of economic power'. So whilst this case clarifies some of the areas which Dacas may have confused, the law surrounding employment status is far from settled. Indeed, the judge suggested an urgent analysis of the issue of agency workers was required, "with legislative protection where necessary". Interestingly, a Private Members Bill has recently been introduced in the House of Commons to provide agency workers with greater protection but it is highly unlikely this will result in any new legislation.

Flexible working for carers

The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 were published shortly before Christmas, introducing the right for carers of adults to request flexible working arrangements which comes into force on 6 April 2007.

This new right will operate in the same way as the existing right for parents of young children to request flexible working. Importantly, it is only the right to request; there is no absolute right for the employee to be allowed flexible working arrangements.

Eligible employees must have at least 26 weeks service at the date the application is made, and must provide care for an adult who is a spouse, partner or civil partner of the employee, a relative of the employee or living at the same address as the employee. "Relative" has been broadly defined in the Regulations to include aunts, uncles, in-laws and step-relatives. The application must be made in writing and specify the type of flexible working arrangement requested.

Employers will be required to follow the same procedure for considering such requests, including:

• holding a meeting with the employee within 28 days of the application to discuss their request;
• providing their decision in writing within 14 days of the meeting; and
• if the request is refused, the business reasons for doing so must be given and the employee informed of his or her right of appeal.

The DTI has issued revised guidance on flexible working to cover the new right for carers of adults. This includes examples of what type of care eligible employees are likely to be involved in, since the term "care" itself is not defined in the legislation. It also provides details and links to other organisations that can provide support and information for carers. The new guidance is available from the DTI website

Top 10 Employment Law Developments of 2006 Briefing

As you are aware, employment law is a rapidly developing area and all the indications are that the relentless pace of development is set to continue. With this in mind and to start off the new year we will be running briefing sessions covering the top ten developments of 2006 as well as some predictions of forthcoming developments to ensure you start 2007 in the best shape to protect your business.

The emphasis of these briefings is very much on the practical implications of all the changes and what they mean for you and your business. The briefing that we offer differs from that of many other training providers, as it is delivered by qualified and experienced lawyers who specialise exclusively in employment law and who advise employers on a daily basis on the practical implications of legal changes. The session will revisit the following major developments:

• Age discrimination
• Atypical workers
• Part Time Workers
• Work and Families
• Working Time
• Vicarious liability
• Statutory procedures
• Equal Pay
• Disability Discrimination
• Immigration developments in 2006

This briefing will be held in Norwich on Wednesday 24 January 2007 and in London on Tuesday 13 February 2007. To book your place on the Norwich date please click here, or to reserve your place in London please click here.

For further information regarding either of the above topics, or indeed any other immigration or nationality issue, please contact Mark Barnett at immigration@steeleslaw.co.uk.

This article copyright © 2007 Steeles Law llp. All rights reserved.