Currently, under the Disability Discrimination Act 2005, an impairment has to relate to one of eight specific capacities if it is to be taken as adversely affecting a worker’s ability to carry out an everyday activity.

The eight categories are:

• Mobility.
• Manual dexterity.
• Physical coordination.
• Continence.
• Ability to lift, carry or otherwise move everyday objects.
• Speech, hearing or eyesight.
• Memory or the ability to concentrate, learn or understand.
• The perception of the risk of physical danger.

The consultation has found that this list is unduly restrictive, and so it will be removed by the Equality Act 2010.

Instead, tribunals will be left to make a common sense decision on whether or not a specific impairment has a disruptive effect on day-to-day activities. This should make it easier for claimants to prove that they are disabled.

Technorati Tags: Disability Discrimination

The most straightforward way for employers to do this is if the workers agree to a change in their contracts. They may well accept this if it is clear that the cuts are needed and that the alternative would be redundancies.

If employees will not willingly take a cut in pay, the employer can dismiss them, then re-employ them on new contracts under the lower pay terms.

For this to be fair, the employer will need to be able to demonstrate that there is a genuine business need for the change, and that affected employees have been genuinely consulted about the change. The employer should also give the workers the required contractual notice of dismissal and re-employ them immediately after the notice period has ended.

As the termination of the original contract constitutes a dismissal, there is a risk that an employee may make a claim for unfair dismissal. The employer will then have to rely on “some other substantial reason” under s. 98(1)(b) of Employment Rights Act 1996 as being the fair reason for dismissal.

Technorati Tags: Employee Pay, Employee Rights

By contrast, the retail price index fell slightly from 5% to 4.8%, which means that pay awards are falling in relation to inflation by a whole 3.8 percentage points. However, there are some indications that pay settlements may be making something of a recovery.

While the median award has remained the same, the spread of awards has widened slightly, as the upper quartile has risen to 2.3% from the 2% at which it has stood for each successive quarter from April 2009.

Also, the number of pay freezes in operation has fallen to 26%, down from 38% in the previous three-month period, and almost half of the pay settlements in the sample studied were higher than they had been in the previous year.

Despite faring relatively well throughout the recession, public sector pay awards now seem to be showing signs of weakening in advance of the proposed spending cuts announced by the current government, with median public sector awards falling behind that of the private sector for the first time since March 2009.

In the twelve months leading up to July, the median award in the private sector stood at 1%, while the public sector median was half of that level at 0.5%.

Technorati Tags: Employee Rights

A food-processing plant owned by Dunbia - a company with a turnover of over £450 million - in Sawley, Lancashire has a blanket policy that requires all of its workers to clock out and then back in when going to the toilet.

Although Dunbia claims that workers are paid an additional allowance for this, 86 employees are about to make a joint claim against them for unlawful deductions from wages. In this context, some of the issues that could arise from such a policy include:

• Deductions leading to workers’ pay falling below the level of the National Minimum Wage.
• Pregnant workers claiming that they are being treated less favourably because they have to make more visits to the toilet than other workers.
• Workers with incontinence or on certain types of medication could claim disability discrimination for the increased pay deductions they suffer as a result of having to use the toilet more frequently than other employees.

The TUC highlighted the issue of toilet breaks in March 2010 with its report Give us a (Loo) Break!, in which it advocated “the need for a specific legal right to use toilets in the employer’s time without a deduction in pay, and without any harassment”.

Technorati Tags: Employment Appeal Tribunal

Commenting on the case, Harry Eyre, Head of Employment Law for Raleys Solicitors, remarked: “This is quite an unusual case because of the length of the absence due to illness … but it does illustrate that employees are now entitled in law to payment in lieu of any holidays they are unable to take or carry forward up to a maximum of six years.”

The issue of whether or not an employee who is absent due to illness is entitled to accrue paid holiday rights was referred by the House of Lords to the European Court of Justice (ECJ) last year.

The question was finally resolved in January through the case of Stringer & Ors v HMRC at the ECJ in favour of employees, and in the case of Ainsworth & ors v Commissioners of Inland Revenue in the House of Lords. In effect, the ECJ ruling means that under Directive 2003/88/EC article 7, a worker does not lose their right to paid annual leave which sickness has left them unable to take.

Technorati Tags: Sick Leave

The original victimisation case related to negative feedback and an unfavourable assessment by the head teacher of the school towards Mrs Blundell, as well as her eventual dismissal, which the tribunal had found to have been due to a complaint of sex discrimination which Mrs Blundell had made previously.

In making the award for injury to feelings, the tribunal considered the guidelines laid down in Vento v Chief Constable of West Yorkshire Police, and determined that Mrs Blundell had been subject to what amounted to “conduct akin to a campaign of discriminatory harassment”, and that she was entitled to compensation in the top band.

In reviewing the case, the EAT found that the £22,000 that Mrs Blundell had been awarded had been pitched at too high a level. In coming to this decision, they used the cases of HM Prison Service v Salmon and the Prison Service v Johnson to set an appropriate benchmark.

In the Salmon case, an award of £20,000 was made for injury to feelings after an extremely protracted and unpleasant campaign against the claimant. Similarly, in the Johnson case, the claimant was awarded £20,000 after an 18-month campaign of racial discrimination had been carried out against him.

The EAT ruled that, in the light of these two cases, the compensation awarded to Mrs Blundell should not have been from the top band available but rather from the middle band. Hence her compensation for injury to feelings was reduced to £14,000.

Technorati Tags: Employment Appeal Tribunal, Racial Discrimination

Halima Aziz, a former prosecutor for the Crown Prosecution Service, was suspended from her position in October 2001 after following allegations that she had made provocative statements about Osama Bin Laden and terrorism to staff at Bradford Magistrates Court. In a subsequent tribunal in Leeds in 2004, it was ruled that this suspension amounted to racial discrimination.

The Crown Prosecution Service appealed the decision to the Employment Appeal Tribunal (EAT) and won, whereupon Miss Aziz appealed to the Court of Appeal, where her claim was upheld and remitted back to the Employment tribunal for remedies an astonishing four years later.

Miss Aziz was awarded £600,000 in damages, which included £10,000 for aggravated damages which arose from the critical judgement which described the disciplinary practice of the CPS as flawed.

While the CPS did not appeal the finding of racial discrimination, they did appeal the amount of compensation awarded.

A preliminary hearing was heard last month and Judge Peter Clark granted the appeal. A further decision on the case is expected in the next six months.

Technorati Tags: Racial Discrimination

After returning to work after having her child, Ms Denysenko found that a colleague - who had been filling in for her while she was away - had been given her job. For seven months they shared duties, until her employer claimed that they did not need two employees to deal with the Ukraine area and made her redundant.

Following an eight-day hearing at the East London Employment Tribunal, it was found that she had suffered discrimination and been unfairly dismissed.

During the case, Judge George Foxwell stated: “The fact that the claimant had taken maternity leave and had ongoing responsibilities as a mother contributed to her selection for redundancy.”

The panel will now decide the size of her award.

The tribunal determined that her employers had made unfair assumptions about her suitability for the position due to her new position as a young mother - during redundancy consultations, concerns were raised that she would no longer be able to “put in the hours”.

The tribunal concluded: “Had … a fair procedure been adopted in redundancy selection it is more than likely she would have retained her job.” As her replacement was only in the Ukrainian team as a result of Ms Denysenko being on maternity leave, her selection over his for redundancy was deemed unfair.

Technorati Tags: Maternity Leave, Sex Discrimination

The main changes to be implemented include:

• The main rate of the National Minimum Wage will increase from £5.80 to £5.93 per hour.
• The qualifying age for this rate will be reduced from 22 to 21.
• For workers aged between 18 and 20, the rate will be increased from £4.83 to £4.92.
• For employees aged below 18 who are no longer of compulsory school age, the rate will increase from £3.57 to £3.64 per hour.
• Apprentices who are employed under a contract of apprenticeship or are employed under Government arrangements in the UK and who are within the first 12 months of their employment or have not yet reached the age of 19, will be entitled to a minimum wage of £2.50 per hour.
• In situations where an employer provides a worker with living accommodation, the per day value of the accommodation amount will increase from £4.51 to £4.61 for each day that accommodation is laid on for the worker.

While these changes may not seem significant, they will help to keep the National Minimum Wage in line with recent rises in the Retail Price Index.

Technorati Tags: National Minimum Wage, Worker's Rights

On the day of his hearing, Mr Asim failed to attend, and instead made an application for adjournment due to lack of representation and on medical grounds. The tribunal refused his application, and his claim was dismissed.

He appealed the decision, and, at the subsequent Employment Appeal Tribunal (EAT) hearing, produced a doctor’s letter that he had obtained after his adjournment request had been refused. The letter contained advice given to Mr Asim by his doctor the day before the original hearing, which stated that, for medical reasons, he was not fit to represent himself.

The EAT applied Teinaz v London Borough of Wandsworth (2002), and judged that had the tribunal seen the letter, the adjournment would have been granted. In the Teinaz case, the Court of Appeal had determined:

“A litigant whose presence is needed for the fair trial of a case but who is unable to be present through no fault of his own will usually have to be granted an adjournment however inconvenient it may be to the Tribunal or to other parties.

“That litigant’s right to a fair trial under article 6 of the European Convention on Human Rights demands nothing less, but the Tribunal or court is entitled to be satisfied that the inability of the litigant to be present is genuine and the onus is on the applicant for an adjournment to prove the need for such an adjournment.”

Regarding the admission of fresh evidence (the doctor’s letter), the EAT considered paragraph 8 of the EAT Practice Direction, Ladd v Marshall (1954) and the overriding objective, and allowed the doctor’s note to be considered. It found that the letter was credible, relevant, and would have been likely to play a determining role in the tribunal proceedings.

The case was hence remitted to the tribunal for a full hearing.

Technorati Tags: Employment Appeal Tribunal, Sick Leave