Employment & Immigration Legal Updates 14/09/2009

Disability Discrimination

Chief Constable of Lothian and Borders Police v Cumming (EATS/0077/08)

This case involved an analysis of whether an employer had discriminated against an employee on grounds of her disability when he rejected the employee's application to a higher post due to the employee's minor visual impairment.

Employment Associate Solicitor Alison Parker comments:

The Disability Discrimination Act 1995 (DDA) defines a disabled person as one who has 'a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities'.

The employee worked for a police force as an operations coordinator. She applied for a role as a regular constable and performed well in the entrance examinations. However, she was rejected from the post on the basis that the medical examination revealed a mild condition with her left eye.

The employee bought a disability discrimination claim to the Employment Tribunal (ET). The ET held that:

• The employee suffered from a disability within the DDA - visual long term impairment;
• The fact that the disability had prevented her passing the medical examination and thereby prevented her from furthering her career represented a substantial adverse effect on her ability to carry out normal day to day activities with the DDA;
• In any event the disability had a substantial adverse effect on the employee's ability to carry out day to day activities.

The employee appealed to Employment Appeal Tribunal (EAT) where she won her claim on the following grounds:

• It was the decision of the police department that prevented the employee from progressing her career; not her visual impairment. The employer's decision and reaction to the disability could not be a relevant 'adverse effect' within the DDA.
• Career progression is not, solely, a normal day-to-day activity within the DDA. The employer failed to provide evidence of how the employee's visual impairment would prevent her from carrying out day-to-day activities within her job as a regular constable.
• The Court then went on to consider whether the visual impairment could in fact substantially affect the employee's day-to-day performance. It was held that it did not - the visual impairment would have a minimal, not a 'substantially adverse', effect on the employee's ability to perform.

Practical implications

Employers should be cautious before rejecting a candidate based on results of a medical examination or other physical requirements of a job entry. The employer will have to consider whether the employee's impairment will substantially affect his ability to conduct day-to-day activities required on the job.

Click here for a copy of the decision.

UK Immigration Update - September 2009

New Government Rules Protect British Jobs

The government has adopted new rules designed to enhance job prospects for British workers following the recommendation of the Migrant Advisory Committee. The rules will tighten the conditions regarding the advertising of job vacancies in the UK to foreign skilled workers under the points-based system.

Immigration Associate Solicitor Mark Barnett comments:

The new rules will include the following changes:

• All jobs will first be advertised to British workers in Jobcentre Plus for four weeks (as opposed to the current two weeks) before being offered to workers from outside Europe;
• The qualifying period for overseas workers having worked for an overseas company wishing to transfer to their UK based company will extend from six months to a year; and
• The minimum salary to qualify within the foreign 'skilled workers' category entitled to work in the UK will increase from £17,000 to £20,000.

The policy reason given by the UK Border Agency behind the amended rules is essentially to give priority to British workers and discourage UK companies from seeking to transfer staff from their foreign group companies or as a cheap alternative.

For further information regarding these changes or assistance with any UK immigration and/or nationality matter, please contact Mark Barnett, Head of Immigration and Notary Public, at Steeles Law at immigration@steeleslaw.co.uk or on 020 7421 1720.

Increase in Parental Leave

The European Commission (EC) has approved an increase in parental leave from the current three months to four months leave for each parent.

Employment Solicitor Sasha Lormant comments:

In the UK parents are currently entitled (subject to certain eligibility requirements) to take up to thirteen weeks unpaid parental leave for each child up until the child's fifth birthday (or, if the child is disabled, up until the eighteenth birthday).

The EC approved the change in parental leave by adopting the Framework Directive. The policy basis behind this change is the desire to improve the work-life balance for European employees and equal treatment between men and women while simultaneously maintaining the relationship between the employer and employee while the latter is on parental leave.

Additional employee friendly provisions introduced by the Framework Directive include:

• Enhanced flexibility for parents in respect of working hours on return from parental leave. Employers must consider and respond to any such flexibility requests.
• The employee is protected from less favourable treatment by the employer on grounds of taking parental leave.

The provisions apply to all employees including part-time, fixed-term and agency workers. The proposal will now be put before the European Council to adopt by way of an amendment to the Parental Leave Directive and requires the vote of a qualified majority before it is transformed into legislation. The amended Directive will then have to be incorporated within UK law, and therefore the specifics of the new provisions on parental leave will be further detailed in the near future by UK legislature.

We will keep you updated with any progress.

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