May 29 2007 Employment Law Enews

Welcome to the latest edition of steeles employment law e-news.

Adjustments were not enough

Under the Disability Discrimination Act 1995 (DDA) it is unlawful for a qualifications body to discriminate against a disabled person in the arrangements it makes for determining on whom to confer a professional or trade qualification. Such bodies are also required to make "reasonable adjustments" in order to prevent disabled people being placed under a disadvantage. Employers are under very similar duties in respect of employees and job applicants.

In the recent case of Project Management Institute v Latif, the Employment Appeals Tribunal (EAT) upheld the tribunal?s decision that the Institute (a qualifications body) had failed in its duty to make reasonable adjustments, despite the adjustments that had been made.

Facts

Ms Latif applied to the Institute to take the Project Management Professional examination. She is registered blind and sought certain adjustments to be made in order to facilitate her taking the exam. The Institute allowed her to be accompanied by a reader and allowed her eight hours to sit the exam rather than the usual four. However, it refused her request to use her own laptop computer (which had screen-reading software installed) during the exam, and refused to install the software on one of its networked computers for security reasons. Ms Latif passed the exam but she subsequently brought a claim against the Institute for failing to make reasonable adjustments as required under the DDA.

At the tribunal hearing, it was suggested by Ms Latif's representative that the software could have been installed on a "stand-alone" computer, eliminating any security concerns. The tribunal agreed that this would have been a reasonable step to take and that it would not have involved disproportionate cost. The Institute had therefore failed to make reasonable adjustments and was criticised for failing to make a proper assessment of what adjustments could have been made. Ms Latif was awarded £3,000 for injury to feelings.

Decision

The EAT dismissed the Institute's appeal and agreed with the tribunal's view that the proposed adjustment (ie the stand-alone computer) would have emerged earlier, had a proper assessment been undertaken. Whilst a failure to carry out an assessment is not, according to recent authority, a breach in itself, it may well result in a respondent failing to identify and make adjustments which it ought reasonably to make. The duty to make reasonable adjustments is not limited to adjustments identified or suggested at the time by the claimant.

Comment

This case demonstrates that the duty to make reasonable adjustments can go a lot further than many people appreciate. The respondent in this case was criticised by the tribunal for treating all blind people as a single class and for simply "holding the line" on its stated policy, rather than seeking to engage in a meaningful way with the particular needs of the individual. The fact that the Institute had taken some reasonable steps did not mean that all reasonable steps had been made or that its duties under the DDA had been properly complied with.

Returning from maternity leave - what is the "same job"?

A woman returning from maternity is ordinarily entitled to return to "the job in which she was employed before her absence". In the recent case of Blundell v Governing Body of St Andrew's Catholic Primary School, the EAT considered, for the first time, how "the job" should be defined in this context and what this means for returning mothers.

Facts

Mrs Blundell, a teacher, was allocated the Reception Yellow class to teach for the school year 2002/03. In order to give teachers at the School a breadth of experience, the Headmistress would generally require them to teach a class for two years, after which they would change to a different class. The Headmistress would seek the teachers' preferences as to where they would like to teach next, but did not guarantee these preferences.

In late 2003, Mrs Blundell started maternity leave. On her return, Mrs Blundell was allocated to teach a Year 2 class. Mrs Blundell claimed that in making this allocation, the School had failed to allow her to return to the "job in which she was employed before her absence", which she claimed was "Reception Yellow teacher". Further, Mrs Blundell claimed that she had been subject to a detriment on the grounds of her pregnancy/maternity leave, because she had not been consulted on her allocation to Year 2.

Decision

When considering whether Mrs Blundell had returned to the "same job", the EAT compared the nature, capacity and place of the "new" and "old" jobs. It concluded that, whilst it was clear that the nature of Mrs Blundell's work was as a teacher, as it was customary for teachers at the School to change classes every two years, her capacity was "class teacher", not "Reception Yellow teacher". Further, Mrs Blundell's place of work was the School, not the Reception classroom. The EAT considered that, as Mrs Blundell's role was variable, the School could have regard to the normal range and variation of her work when allocating her a class on her return. Therefore, Mrs Blundell had returned to the "same job".

On the issue of detriment, the EAT held that in being denied the chance to express a preference as to her allocation, Mrs Blundell had lost something that she might reasonably think to be of value. The EAT added that the short discussion she had with the Headmistress shortly before her return was no substitute for being asked for her preference when the other teachers were consulted at the outset of the allocation process.

Comment

This case highlights the importance of an employee's right to return to her old job, and notes that the legislation is intended to ensure that an employee's work position is a near as possible to that at the time she left, so as to avoid imposing any additional burden on her at a vulnerable time.

Further, this case makes it clear that where a job is itself variable, the employer is afforded some latitude in determining what would be the "same job". Given the purpose of the legislation, this latitude is likely to be applied narrowly to ensure that employers do not introduce extra variety into employees' workloads prior to maternity leave simply to enable a change in roles to be imposed on their return.

New consultation on additional paternity leave

The DTI has recently issued a new consultation paper on its proposals to allow fathers to take additional paternity leave, on top of the existing right to two weeks' paternity leave around the time of the birth.

The right to additional paternity leave (APL) was included in the Work and Families Act 2006, but further regulations are required to set out the detailed provisions. The Work and Families Act also makes provision for up to 12 months of maternity leave to be paid (at present, 39 weeks can be paid). It is intended that the paternity leave proposals will take effect at the same time as the introduction of 12 months' paid maternity leave and mothers will be able to effectively "transfer" part of their maternity leave to their spouses or partners. It is proposed that employees will be entitled to take up to six months APL and pay, starting after about six months of the mother's maternity leave, provided that the mother of the child returns to work. Note, although the consultation paper refers to "father" throughout, the right to APL will apply equally to partners (of either sex) of mothers and one member of an adopting couple, provided they are employed and where the other has taken statutory adoption leave and pay.

Employees who take APL will receive statutory paternity pay (SPP), provided that the mother would have been entitled to statutory maternity pay or a maternity allowance for the period in question. The level of SPP will be based on the rate of statutory maternity pay (currently £112.75 per week), meaning APL is likely to appeal most to families in which the mother is the higher earner.

It is proposed in the consultation paper that a spouse or partner would be able to "self-certify" that the mother is returning to work early and is passing her maternity benefits to him or her. The spouse or partner would be required to give his employer 8 weeks' notice of his intention to take APL.

Employees taking APL will also be entitled to benefit from the same terms and conditions of his employment as provided to a mother on maternity leave and to the same right of return to his old role as provided to a woman returning form maternity leave.

Whilst there is no confirmed date for these changes to take effect, the suggested date for implementation is in relation to parents of children born after April 2009. The consultation ends on 3 August 2007. For a copy of the full consultation paper see the DTI website

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