September 19 2005 Employment Law Enews

Welcome to the latest edition of employment law enews. In this issue we look at Disability Discrimination; the importance of time limits for issuing claim forms; and pregnancy related illness - can you stop sick pay?

Constructive Knowledge under the Disability Discrimination Act

Under the DDA 1995, broadly speaking, an employer can be held liable for disability discrimination if he treats a disabled person less favourably, for reason of his disability, than he would treat others, and if he fails to comply with his duty to make reasonable adjustments for the employee's needs.

In the case of Department of Work and Pensions v Hall an employer was found to have discriminated on both of the above grounds, despite the fact they had no 'actual' knowledge of the employee's disability.

The case concerned an employee who suffered from a psychiatric condition, for which she had to take medication. The employee failed to disclose her disability on her Health Declaration form and she refused to allow her employer to contact her doctor. In spite of this the EAT found that the employer had constructive knowledge of the employee's disability. This finding was based on the following facts:

• A member of the interview panel had known the employee for some time;
• The employee completed a disabled person's tax credit form which she presented to HR and her employer;
• The employee's manager was aware that her conduct at work was volatile and disruptive.

The EAT found that the employer had discriminated against the employee on the grounds of her disability. The EAT also found that the employer had failed to address the question of reasonable adjustments and the employee was awarded compensation accordingly.

In handing down this judgement the EAT re-emphasised the duty on employers to make enquiries into the health of their employees and the need to make adjustments, as pleading lack of knowledge of the disability is a line of argument that the tribunals are unlikely to accept.

Issuing Proceedings - The Importance of Time Limits

The Employment Appeal Tribunal recently re-emphasised the importance of complying with the strict time limits for issuing claim forms. Under section 111(2) of the Employment Rights Act 1996 (ERA) a complaint must be made to the Tribunal within three months of the effective date of termination of employment. There is provision under this section for the Tribunal to extend this time limit where it was not reasonably practicable for the complaint to be presented within three months.

In the case of Agrico UK Ltd v Ireland a firm of solicitors, instructed by the claimant, submitted the claim form to the tribunal one day out of time. The solicitor dealing with the matter awaited information from the claimant to insert on the form before it could be sent. The 3 month deadline was on Monday 13 September, however the solicitor in charge left to go on holiday on Friday 10 September. The form was left with the solicitor's secretary under the instruction to send the form on Monday. The secretary fell ill on the weekend, did not attend work on Monday and the form was sent to the tribunal on her return on Tuesday.

The EAT held that the test for granting an extension of time was a strict test. The test is one of reasonable practicability. In the circumstances, given that the secretary had failed to telephone the office on Monday and arrange for another solicitor to send the form, the firm had not done everything reasonably practicable to ensure that the claim was issued on time.

The case serves as a reminder to all solicitors, advisors, or indeed employers themselves, of the importance of adhering to the time limits laid down by the ERA.

Pregnancy related Illness - Can you stop sick pay?

The recent case of North Western Health Board v McKenna concerned a female employee who claimed that she had been a victim of sex discrimination. Her first complaint was that her pregnancy related illness had been dealt with by her employer in the same way as other employees' general illnesses and her period of absence had been offset against her overall sick- leave entitlement. Secondly, she complained that, contrary to EC law, she had been subjected to less favourable treatment as she had only received half pay for the remainder of her sick leave, after the 183 day period during which she received full pay.

The Health Board's sick leave scheme entitled its staff to 365 days paid sick leave in any four-year period. Employees were entitled to full pay for the first 183 days, in any 12-month period, after which any further days taken off in the same period attracted only half pay. This scheme applied equally to men and women and did not distinguish between pregnancy related illness and any other forms of illness.

The European Court of Justice held that this was a case to which the Equal Pay provisions applied. Furthermore there is no requirement under EC law for a woman to be paid in full during maternity leave, provided that the amount paid was not so low as to undermine the purpose of maternity leave, which was the protection of women.

The ECJ held that the sick pay scheme was not discriminatory. This decision seems to allow employers to stop paying sick pay to female employees absent through pregnancy related illness once they have exhausted their entitlement to sick pay under the scheme.

However, the last paragraph of the judgement seems to imply that an employer will still have to pay sick pay to a woman who goes off sick again at a later date, after she has exhausted her entitlement to sick pay, because she had taken sick leave due to a pregnancy related illness.

HR practitioners are advised to keep an accurate record of sickness absence, especially if the absence is caused by a pregnancy related illness. Companies should seek legal advice before stopping sick pay.

Employment Law Update Seminar

Employment law continues to develop each year at a rapid pace and 2005 has been no exception, with a number of significant case law and legislative developments. These changes have wide ranging implications for all employers.

steeles' Employment Law Update seminar will focus on the most recent employment law developments so that HR practitioners can keep right up to date with the legal issues which affect their day-to-day work. We aim to identify for you the practical implications of these changes as far as your business or organisation is concerned.

We will review the following areas:

• Discrimination
• Holiday Pay & Working Time
• Redundancy; Compromise Agreements
• Agency Workers
• Transfer of Undertakings
• Data Protection
• Plus an overview of the developments to look out for in 2006.

This morning seminar takes place on Tuesday 4 October at Broadway House, Tothill Street, London, SW1H 9NQ. The seminar has a 9.00 for 9.30am start and will conclude no later than 1.00pm and costs £50 + vat. To reserve your place call Beth Wilson on 0870 60 90 200 or book online

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