September 17 2007 Employment Law Enews

Welcome to the latest edition of steeles Employment Enews

Employee who could not acknowledge disability

Claims for disability discrimination must normally be lodged within three months of the alleged act of discrimination, unless the employment tribunal considers it to be just and equitable to extend the time limit. In this recent decision, the Court of Appeal accepted the claimant's argument that he had been unable to accept that he was disabled by reason of a mental impairment, and permitted his claim to be submitted after the expiry of the time limit.

Facts

Mr Jones was employed as chief executive of the North Wales Magistrates' Courts Committee. He was suspended in July 2004 following allegations of serious financial irregularities.

Disciplinary proceedings were postponed when Mr Jones was diagnosed with anxiety and depression in September 2004. Both his doctor and the Committee's doctor advised that he was not fit to attend a disciplinary hearing, which was postponed until 14 January 2005. The hearing eventually went ahead in late January in the absence of Mr Jones and he was dismissed for gross misconduct. An appeal hearing also took place in his absence, following which his dismissal was confirmed and took effect on 1 March 2005. The Committee ceased to exist on 31 March 2005, when it was replaced by the Department for Constitutional Affairs (DCA).

Mr Jones submitted a claim for unfair dismissal within the three month time limit. On 5 July he also submitted a claim for disability discrimination, outside the time limit. The DCA argued that his claim should not be heard because it was out of time. Mr Jones successfully argued for an extension of time on the basis that he had not previously been prepared to accept that he was disabled as a result of a mental illness, despite advice he had received from solicitors and his union that he had a disability. A tribunal Chairman accepted that he had a "genuine reluctance" to acknowledge that he had a disability. He also took into account the fact the Committee had pressed ahead with proceedings in Mr Jones' absence, in order to conclude the matter before it ceased to exist. This meant Mr Jones had less time to come to terms with his disability, since his dismissal took place sooner that it would have done otherwise.

This decision was upheld by the Employment Appeal Tribunal (EAT). The DCA appealed to the Court of Appeal.

Held

The Court of Appeal agreed with the Chairman's decision to grant an extension of time in these circumstances. It noted in particular the Committee's conduct in hurrying the disciplinary process, which had the effect of advancing the termination date. It also pointed to the fact that the DCA itself had disputed whether Mr Jones was disabled, making it more difficult to argue that he had been unreasonable in not acknowledging his disability.

Comment

It is easier for a claimant to convince a tribunal to extend the time limit in discrimination claims than in claims for unfair dismissal, where the test to be applied is more stringent. In this case, the delay was relatively short and the employer's actions in dismissing sooner than would probably otherwise have happened were significant. The Chairman recognised the difficulty Mr Jones had in acknowledging that his mental illness amounted to a disability, as being "neither uncommon nor unsurprising". However, this would not necessarily be limited to cases of mental illness, since the Court of Appeal could envisage the point arising in cases where a physical injury was on the margin of being a disability.

Department of Constitutional Affairs v Jones

Employee dismissed for breaching no-smoking policy

A Scottish employment tribunal has recently heard a smoking-related unfair dismissal claim, which provides some indication of how tribunals may approach this issue since the introduction of the smoking ban in England in July 2007.

Facts

For many years, Michelin's Dundee factory had adopted a strict no smoking policy in unauthorised areas. A breach of this policy was listed as gross misconduct in the factory's disciplinary procedure, which would, in serious cases, result in dismissal without notice.

Michelin decided to use the introduction of the public smoking ban in Scotland (which took place in March 2006) as an opportunity to extend its no smoking policy to cover all areas of the factory and designated areas outside the factory. The new policy was communicated to all members of staff. However, somewhat contradictory to previous guidance, it was stated that if a member of staff was seen smoking, they would be asked politely to stop and reminded that this "may" be treated as gross misconduct.

On 21 November 2006, Mr Smith was caught smoking at the fire door in the locker room and was suspended.

At the disciplinary hearing, Mr Smith did not deny the allegations but in his defence put forward several mitigating factors. He stated that he had been under pressure, suffering from depression, was "addicted" and had lit up without thinking.

Michelin took into account the mitigating factors and Mr Smith's 12 years service but found that this did not negate the fact that he was guilty of gross misconduct and consequently he was summarily dismissed. Mr Smith's appeal against his dismissal was rejected and he brought a claim for unfair dismissal.

Held

The tribunal held that Mr Smith had been fairly dismissed by Michelin. The tribunal stated that the personal circumstances of the employee had to be weighed against the "importance of the smoking policy in preserving [Michelin's] business, their property and more importantly the lives of their other staff". The tribunal concluded that Michelin's decision to dismiss was within the band of reasonable responses available to a reasonable employer.

Comment:

The tribunal stated that the introduction of the legislative ban on smoking did not add to the employee's breach, as Michelin already had a no smoking policy in place. However, it is interesting to note the importance that the tribunal attached to preserving the lives of other members of staff. With the recent introduction of a smoking ban in England, this case is useful guidance as to how tribunals may approach a similar case relating to a breach of a company's no smoking policy. It also illustrates the importance of having a carefully worded no-smoking policy.

Tribunal Cases rise by 15%

The number of cases lodged with Employment Tribunals in Great Britain has increased by 15%, from 115,039 in 2005/2006 to 132,577 in 2006/2007, according to statistics released by the Tribunals Service. These statistics are considered to be more accurate than those published in the Acas annual report, which we reported recently.

The majority of claims were for unfair dismissal, with the average compensation awarded under this heading being 7,974 pounds.

The Tribunals Service said that with the exception of race discrimination, all other forms of discrimination showed an upwards trend, with equal pay claims experiencing the highest increase, up 155% from 2005/2006.

The report also showed that 972 age discrimination claims were presented in the period October 2006 to March 2007, following the introduction of the Age Discrimination Regulations. Whilst not the avalanche of claims that some predicted, it is still early days and it is likely that the number of claims brought in the future will increase significantly.

Why the increase?

Jeanne Spinks, Chief Operating Officer for the service, said: "The significant reason for the increase in employment tribunal cases ... is a 155 per cent increase in equal pay claims". The majority of these relate to claims that have been brought against local authorities and the NHS.

Part of the increase has also been linked to the statutory dispute resolution procedures, which were introduced on 1 October 2004. These procedures were originally introduced with a view to reducing the number of claims reaching a tribunal by aiding early resolution. However, it appears that in practice they are actually having the contrary effect, due to the complexity of when these procedures will and will not apply.

Immigration Update: The International Graduates Scheme (IGS)

The International Graduates Scheme replaced the Science & Engineering Graduate Scheme as from 1 May 2007.

To qualify for an extension of stay under the International Graduates Scheme the individual must have successfully completed on or after 1 May 2007 any Degree, Masters Degree, PHD or Post Graduate Certificate or Diploma at a UK educational institution that is a recognised or listed body, or successfully completed before 1 May 2007 a Degree, Masters Degree or PHD in a subject approved for the purposes of the Science & Engineering Graduate Scheme.

This new scheme therefore has far ranging application for graduates in this position provided that they intend to seek and take work during the period of the leave, are able to maintain and accommodate themselves and have completed the eligible qualification in the last twelve months.

It enables the individual who makes a successful application in this category, to switch into work for a period of twelve months without having to obtain leave in any other working category such as a work permit or Highly Skilled Migrant. Furthermore it gives the individual the opportunity to obtain the relevant experience and/or level of earnings that may be required to switch into work permit employment or apply under the Highly Skilled Migrant programme during or towards the end of the twelve month period.

steeles Immigration team can arrange for this application to be made on a same day basis at the Home Office by instructing agents to attend on the individual's behalf and subject to the relevant documentation being available to obtain endorsement of the individual's passport on a same day basis.

For further information regarding the above or indeed any other UK immigration or nationality issue, please contact the steeles immigration team at immigration@steeleslaw.co.uk or by telephoning Mark Barnett on 020 7421 1720

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