May 2 2006 Employment Law Enews

Welcome to the latest edition of steeles' employment law enews.

New Guidance on definition of "disability"

On 1 May 2006 new Official Guidance comes into effect that helps to clarify and determine questions in relation to the definition of disability. Employment Tribunals will be obliged to take this guidance into account when dealing with disability discrimination cases.

The new Guidance replaces and updates the 1996 version, taking into account changes made by the Disability Discrimination Act 2005. These changes have widened the definition of disability to benefit those with Aids, cancer or multiple sclerosis and have removed the previous requirement that mental illnesses be "clinically well-recognised".

A link to the guidance can be found at: http://www.opsi.gov.uk/si/si2006/20061007.htm

Employee with HIV brings claim of Disability Discrimination

In a case attracting a high level of interest from all sectors, the ruling in High Quality Lifestyles v Watts addressed the issue of whether dismissing an employee on the grounds of his HIV status constituted direct discrimination.

Mr Watts did not disclose his HIV status to his employer when he commenced work as a care worker. When he subsequently disclosed it, his employer arranged for a work-place risk assessment to be carried out by a health and safety consultant. At the same time Mr Watts was suspended on grounds that he had been dishonest. Mr Watts was then dismissed as the risk assessment showed that he posed a significant risk of transmitting the disease. Due consideration was given to the nature of his role, in particular the unpredictable and violent behaviour of certain patients that had resulted in Mr Watts sustaining occasional bites, scratches, superficial abrasions and deep lacerations.

Mr Watts made an application to the Tribunal on the basis that he had suffered direct discrimination as a result of his dismissal. He also claimed that his suspension and dismissal constituted disability-related discrimination that was not justified because the employer had failed to carry out a proper investigation or an adequate risk assessment.

The Tribunal held that Mr Watts' dismissal was not direct discrimination since an employee with an equally serious illness that carried the same risk to others might also have been dismissed. It also held that it was not the employee's HIV status alone that was the reason for the dismissal, but the possibility of transmitting the disease.

However, the Tribunal ruled that the employer had failed to make reasonable adjustments, or to consider alternative employment, as they did not carry out a proper investigation or adequate risk assessment of the situation created by the employee's condition.

While Mr Watts would clearly not have been dismissed had he been free of HIV, this was not in fact the causal factor of his dismissal. His dismissal was instead based on the risk that he presented to others. There was therefore no case of direct discrimination.

This case highlights the need for employers to give careful consideration to the need for reasonable adjustments when dealing with such sensitive health issues.

Age Discrimination survey highlights concerns for employers

A recent survey commissioned by the Department for Work and Pensions has stressed how far employers still have to go to be prepared for the impending Age Discrimination Regulations due to come into force on 1 October 2006. The survey consulted over 2000 businesses in relation to their general employment practices and policies. Age clearly plays a factor for many organisations, with many potentially discriminatory practices being highlighted. The survey found as follows:-

• 5% of employers utilised incremental pay scales based on length of service.
• 15% of businesses employed a performance based pay structure, yet did not implement a formal assessment process relating to such performance.
• 6% of employers had a compulsory retirement age below 65.
• Almost a third of employers adopted the national default retirement age of 65, and as such could find themselves facing difficulties if this should rise in the future.
• 6% of employers used age ranges in job advertisements, and almost half of those consulted employed a maximum recruitment age.

These results clearly strengthen the concern that a substantial number of employers will fall foul of the new regulations. As the date of implementation draws nearer, it is becoming essential for businesses to undertake a review of their relevant policies in this area.

Whilst specialist legal advice in this area is advisable, ACAS has recently published new guidance aimed directly at employers, which may be a useful first port of call. This can be found direct at the following link

Age Discrimination Breakfast Briefing, Norwich

Due to these regulations coming into force, steeles' employment law team are hosting a breakfast briefing cover the essential aspects of age discrimination in order to equip you to take steps now in preparation for October 2006.

We will review the main aspects of the age discrimination legislation as it affects the following:

• What is Age Discrimination?
• How will Age Discrimination affect the Recruitment and Selection of Employees?
• How can we ensure that our Terms of Employment are not Successfully Challenged under the Age Discrimination Legislation?
• When will a Retirement Dismissal be Fair?

This briefing will take place on Wednesday 7 June at Norwich City Football Club. Cost is £40.00 + VAT and includes a full english and continental breakfast. To book your place please call 01603 598000 or book online

This article copyright © 2006 Steeles Law llp. All rights reserved.