May 2012 Employment Law Update
May 2012 Employment Law Update
If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181
1. Assessing the reasonableness of reasonable adjustments
The Employment Appeal Tribunal has determined that to assess an employer’s duty to make reasonable adjustments, it is firstly necessary to establish that the employee has been placed at a substantial disadvantage due to their disability, rather than by some other external factor (such as their personal financial circumstances). In this case it was the financial situation of the employee that made a return to part time work uneconomic for her, not her disability. That reason would have been the same for someone without a disability.
This means that if a practice, criterion or provision in the workplace would affect a non-disabled person in the same way as a disabled person, the disabled person is potentially under no comparative substantial disadvantage and therefore no duty to make reasonable adjustments to the particular practice arises.
HOWEVER, we would always recommend that employers who have any doubts regarding their obligations to make reasonable adjustments for disabled employees should take specific legal advice.
2. Equal Pay & old bonus schemes
The Court of Appeal has found that bonuses paid to groups of mostly male employees that were introduced to increase productivity could no longer be justified where they were no longer linked with productivity. This means that bonus schemes that are potentially non-discriminatory when they are first instituted can lose that status as the situation changes and consequently breach equal pay legislation.
ACTION POINTS: Employers should review any long standing bonus schemes in operation and ensure that they can still justify any difference in pay and, if necessary, seek legal advice.
3. Some comments on the recent consideration of having a compulsory retirement age.
So, the Supreme Court has held that a mandatory retirement age can be justified and therefore not discriminatory on grounds of age if:
A. The legitimate aims of fixing the retirement age are connected to social policies, for example, those related to employment policy, the labour market or training. The aims must be in the public interest rather than for reasons particular to the employer’s situation, such as cost reduction or improving competitiveness. To date, the aims which the European Court has been willing to accept fall within two categories –
- ‘inter-generational fairness’ which covers a variety of issues, for example, allowing access to employment by young people, helping older people to remain in the workforce, distributing limited opportunities to work in a particular profession fairly and promoting diversity and the exchange of ideas between older and younger workers; and
- ‘dignity’, for example, limiting the need to dismiss older employees on grounds of incapacity or poor performance, or avoiding the need for costly and disruptive disputes about incapacity or poor performance and therefore protecting the employees’ dignity and avoiding humiliation.
B.The legitimate aim applies to the particular circumstances of the employment concerned (e.g. recruiting younger people or retaining older workers to create a balanced workforce); and
C. The method chosen to achieve the aim must be both ‘appropriate and necessary’ as well as proportionate. In other words, the means must be effective and there must be no other, less discriminatory, means meeting the aim.
This means employers will only be able to specify a retirement age where there is a strong justification, based on legitimate social policy aims, for doing so.
ACTION POINTS: The safest option still maybe to have no retirement age at all and to simply manage older workers as appropriate. If employers decide to enforce a fixed retirement age they ensure they are able to justify the requirement and seek legal advice if uncertain.
4. Unsuccessful job applicants & accessing information
The European Court of Justice has clarified that an unsuccessful job applicant is not entitled to all the details of the recruitment process, such as the information about the successful applicant. This means that, even though an unsuccessful applicant is not entitled to see the file of a successful applicant, an employer who refuses to provide this information may be running risks as a tribunal could take the refusal into account in deciding whether there are facts that lead to a presumption of discrimination. If such a presumption is made, it would shift the onus onto the employer to demonstrate that it had not discriminated.
ACTION POINTS: Employers need to avoid discriminating in the recruitment process and must be prepared to justify their decisions. If disclosure of information is requested by an unsuccessful applicant, the request should be carefully considered and specific legal advice may be necessary to assess the risks.
4. ACAS GUIDANCE: Mental ill-health in the workplace
It is estimated that 1 in 4 people will suffer a mental health problem during their lifetime which may impact on their job and the cost to British businesses is estimated to be more than £30billion per year. In recognition of this, ACAS has published a guide to help employers address the issue of mental ill-health at work. The guide explains how to spot early the signs of mental ill-health, raise awareness among staff and develop a culture where employees feel comfortable discussing these issues. A copy of the guidance can be accessed here.
Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181
Follow Julie on Twitter: @JulieT_GL
