November 2005 Employment Law Enews

The Disability Discrimination Act 2005 - Key December Changes

The Disability Discrimination Act 2005 ("the 2005 Act") introduces important changes to the Disability Discrimination Act 1995 ("the 1995 Act"). The most important of these changes will come into effect on 5 December 2005 and include:

1. The protection afforded by the 1995 Act will be extended to those with HIV, Cancer and Multiple Sclerosis from the point of diagnosis, even though they may not yet have shown any symptoms. This is particularly important as previously the protection only 'kicked in' when the illness started to have an 'adverse affect' on the individual's ability to carry out day-to-day activities.

2. There will no longer be the requirement that a mental illness must be "clinically well recognised" to amount to an impairment under the definition of "disability".

Whilst the change in the law to protect from the point of diagnosis is clearly significant, it is the removal of the need to show that a mental impairment is clinically well recognised that will in all likelihood lead to a significant rise in the number of tribunal applications. The change will simplify claims for those suffering from these formally non-classified mental illnesses such as "stress" and "anxiety". Rather than be clinically recognised, the illness will now have to have lasted at least 12 months and have a 'substantial' impact on day-to-day activities.

Solicitor's Letters Enough to Constitute Grievance

Two recent cases have further highlighted the wide interpretation tribunals are giving to the statutory requirement that employees must, in certain circumstances, raise a grievance with their employer before submitting a claim to the tribunal.

In Stewart v Barnetts Motor Group Ltd and anor (2005) a solicitor's letter setting out a claimant's complaints and threatening legal action and likewise in Aspland v Mark Warner Ltd (2005) a letter before action sent by the claimant's solicitor, had in each case done enough to meet the definition of a grievance as it had given the employer the opportunity to resolve the complaint without the need for legal proceedings and had thus fulfilled the purpose of the legislation.

These cases reinforce the point that the only requirement for a grievance be that it be a complaint raised in writing by the employee (or through an agent or representative such as a solicitor). Whilst the tribunal accepted that raising a grievance through solicitors was an aggressive means of meeting the legislative requirements, the legislation did not require such matters to be dealt with in a non-confrontational way and it was irrelevant if the 'grievance letter' dealt with other matters, such as settlement and potential claims against the company.

Emphasis Placed Firmly on the Employer

There is clearly no reason for complacency on the part of an employer. Any correspondence, whether from the employee or a solicitor or other representative acting on their behalf, setting out details of any complaint, could very well place a requirement on the employer to arrange and conduct a suitable grievance meeting or offer an appeal or else face the possibility of having any tribunal award increased by between 10% and 50%.

Compensation Awarded Following False Accusation of Racism

A senior university lecturer who resigned following a accusation of racism against her which turned out to be false has been awarded £55,000 by an employment tribunal. Brenda Ashton was found to have been forced out of her job and constructively dismissed following the accusations.

Mrs Ashton had resigned her £35,000 per annum position as Director of the Centre for English Language at Liverpool Hope University College in August 2003, claiming she had been victimised as a result of claims of racism made against her by other members of university staff who had accused the half-Chinese lecturer of being prejudiced against Chinese students.

Following her departure the university cleared Mrs Ashton of all claims following a report into the allegations. She then made a claim for unfair, constructive dismissal which was upheld by the tribunal by a majority of 2-1.

Mrs Ashton had been made aware of the accusations at a supposedly "informal meeting" with the Dean of University in April 2003, but was not told of her right to be represented. The tribunal ruled the meeting took the form of a disciplinary hearing, and that the Dean had believed the allegations without investigating their validity.

In his written judgment, the Chairman of the Tribunal Mr Reed stated that 'the attitude of the college and the Dean gave a reasonable impression to Mrs Ashton that the stories of her accusers were believed, and her denials were not. Without having undertaken the appropriate investigation that was a stance the college could not properly have taken.'

The tribunal decision hinged on the university's failure to properly investigate the allegations prior to conducting the disciplinary hearing with Mrs Ashton and this clearly reinforces the importance of investigating allegations quickly and appropriately prior to disciplinary action. It also make obvious sense that an employer should take appropriate steps to prevent rumours and whispering campaigns against employees during this period.

Stress at work. Why Worry?

Whilst recent case law has shown that the Courts are taking a firm approach to claims by employees for psychiatric injury arising from stress at work the cost to employers of such claims is such that the risk of a claim should not be overlooked.

The courts have found that ordinary stress within the workplace cannot form the basis of a claim but extraordinary stress placed on any one employee can cause psychiatric injury for which the employer will be liable.

The employer may face significant direct financial cost in meeting the claim through any excess applying to their employer's liability insurance and through rising future insurance premiums in addition to significant time lost in dealing with the claim.

Managing stress at work makes business sense. Louise Morgan looks at some of the issues arising from recent case law in her article available in full by clicking here. Alternatively you can contact Louise Morgan in the steeles Personal Injury Team for further information on lmorgan@steeleslaw.co.uk

This bulletin is intended for general guidance only and should not be relied upon without detailed legal advice on your specific circumstances.

This article copyright © 2005 Steeles Law. All rights reserved.