Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010.
- – While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it should not be assumed from this that a work activity is not a day to day activity;
- – Tribunals should concentrate on what the employee cannot do, not what he can do, when looking at whether there is a substantial impact on day to day activities;
- – When looking at what is substantial or not, it is wrong to think that there is a sliding scale with ”trivial” at one end and “substantial“ at the other – if an effect is not trivial, it is substantial
In this particular case, Mr Aderemi was a station assistant who developed a bad back and was unable to stand for long periods, bend, or lift. This gave him problems carrying out his main duties including checking tickets. His employer dismissed him on the ground of lack of capability. An employment tribunal found that he was not disabled, so his dismissal was not unlawful discrimination, nor was it unfair. In the Employment Appeal Tribunal Mr Justice Langstaff (President) took the view that the tribunal had been unduly restrictive in its approach to what amounted to a day to day activity. As he pointed out:
If the problem is put simply, as being on one’s feet in a job for lengthy periods of time, then it is not difficult to think of very many jobs which would fit that description.
In other words, the ability to stand for longer than half an hour at a time is so commonplace a part of people’s working lives that is falls within the scope of “day to day activity”.
The EAT ordered that both the discrimination finding and the finding that the dismissal was fair were to be reconsidered, pointing out that the decision as to disability could have a knock on effect on the fairness of the dismissal, especially if the disability was caused by the employee’s work.
The case highlights the potentially awkward overlap between potentially fair dismissal on the ground of incapacity and disability discrimination. The letter notifying dismissal included a typical explanation of the reason from an incapacity perspective: Continue reading
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Ah yes! Christmas – time for office parties and merriment – and embarrassing blunders! Employment lawyers love Christmas and in particular the nice little crop of litigation cases that result from Christmas parties. It’s always fun to see the normally prim and proper colleagues imbibe just a bit too much and then tell their boss what they really think of them! Gross misconduct dismissals are based on such things! Other typical occurrences which have employment lawyers rubbing their hands are minor arguments at the party which, seen through the bottom of an empty whisky glass, take on huge proportions and end up in bloody noses! And what about the well meaning manager who, after ten pints or so is VERY happy to offer his secretary a 100% wage increase, or to tell her that his wife has never understood him and he would welcome the opportunity to expand on the subject in a private room somewhere…..?
Employers are potentially liable for the actions of their employees while at the firm’s Christmas party. Make sure you warn your employees that they must control their alcohol consumption and their conduct at the office party, or they will face disciplinary consequences in the cold light of day on 4th January!
That apart, enjoy your office party. Stay (relatively?) sober and have a great holiday!
Flexible working is still often seen solely as a benefit for part-time working mothers with young children. However, a new guide for managers, published by the Equality and Human Rights Commission, shows how employers in many different sectors are gaining better business results from making alternative work patterns widely available to employees.
A medium-sized engineering company in the Midlands making components for the car industry is not an obvious place to find flexible work arrangements. But Stuart Fell, owner of West Bromwich Tool and Engineering Company, told ‘The Times’ in October that two-way flexibility between him and his workers is at the core of his business model. Moreover, it a key ingredient in the success of his business.
The company, which makes pressed metal parts for large manufacturers such as BMW and Nissan, employs about 100 people on nearly 50 different working arrangements. “On paper, it seems very complicated,” Mr Fell said, “but it works very well and the company and employees each get what they need.
“This adaptable and ever-changing arrangement has proved to be capable of producing high performance and is not complicated to manage.”
He says that some employees would not be working for the company without the flexible options, ranging from variable start and finish times to early and late shifts, term-time working and time off at short notice. People are willing to come in early or stay late to get things done when necessary, he said. “There is business we have won because we have been able to respond quickly to a customer demand.”
Based on trust and two-way dialogue between managers and employees, the policy helped when the recession forced the press works to move employees to a four-day week at 80 per cent of pay for three months earlier this year. “When we told them these were extraordinary circumstances and things were bad, they really understood that it was serious and necessary and believed that we were telling the truth.”
Helen Mahy, company secretary at National Grid, which runs gas and electricity transmission networks, has a team of 70 in the UK, about half of whom have formal or informal flexibility, for example working from home for part of the week. This has helped her to recruit and retain skilled people. In general, company secretaries’ departments are fairly traditional, she said, also speaking to ‘The Times’, “There’s a view that you have to be where the board is and where the management and head office are. Yes, you do — but you don’t all have to be there at the same time.”
Handled well, flexibility gives managers a powerful tool to respond to both customers’ and employees’ needs. The business benefits documented in the guide include greater efficiency and productivity, better customer service cover, improved staff retention, reduced absenteeism, more efficient use of workspace and an enhanced reputation as an employer.
Despite the benefits, however, some industries remain resistant to flexible working. An Equality Commission report last week on flexible working for fathers showed that construction, manufacturing, retail and transport were the industries least likely to offer non-standard working arrangements.
Some employers fear that flexible working could be costly, complicated or even harmful to the business — yet more than 90 per cent of small businesses surveyed by the British Chambers of Commerce reported that set-up costs were zero or minimal. More than 70 per cent said that flexibility improved employee relations and more than half reported higher productivity.
• Working Better: A managers’ guide to Flexible Working by Alison Maitland for the Equality and Human Rights Commission, is available free at www.equalityhumanrights.com/flexible
There have been calls for the resignation of the Chief Executive of Eurostar. To me, they seem misplaced. Yes, he’s the head and public face of an organisation that has failed about a hundred thousand people at a very important time, but, if he goes, what good would that do and who would take his place?
Injury stricken Manchester United are rumoured to be appraoching the out of contract (or unemployed) Sol Campbell.
United boss Sir Alex Ferguson has only one first team defender available at present and has resorted to playing numerous players out of position (albeit successfully) to fill the gap. Although this cannot carry on long term.
Ex England Sol Campbell possesses a wealth of talent and would more than confidently fill the gap.
Being unemployed at the moment, plus the chance to play for Man United, if there is any truth in it I am sure Sol will jump at the chance.
Manchester United could benefit from putting him on a fixed term contract (say 6 months) then when injury free they can thank him and part ways with no nasty termination payments.
Michael Owen was out of contract, and look at what a sensational (and inexpensive) choice that was by Manchester United.
Obviously a “Win Win” situation for Man United & the unemployed Sol Campbell
Nothing to do with CLB Business Solutions but if you want to find me on Twitter I’m here. As you see in so many places, if you do visit “the views expressed by Martin Malone are not those of Canter Levin & Berg or CLB Business Solutions”!
If you want to find me on LinkedIn you can find me here.
I use Twitter for random tweets and intend to start using LinkedIn for work stuff (as soon as I have a bit of free time!!)
Jackie Orme, Chief Executive of the Chartered Institute of Personnel Development, the organisation for HR managers, has remained defiant in the face of stinging criticism of the decision to retain her bonus.
Earlier this year the Institute lost 41 staff as well as axing discretionary bonuses for all staff and imposing a pay freeze. Ms Orme is reported to be on a salary of £300,000 and the bonus is believed to add a further £60,000.
The story was broken by Personnel Today and, notwithstanding the resulting furore, Ms Orme appears unwilling to apply the same restrictions to herself as other CIPD staff.
In what many might regard as a striking coincidence the CIPD issued guidance on executive pay last month. According to their press release they are:
“…designed to act as a framework to help HR directors and Remuneration Committees when developing executive remuneration policies, practices and structures. They have been drawn up to be applicable across sector, industry and organisation size. They are also intended to stand the test of time, rising above some of the excessively heated aspects of the current debate on executive reward, but without losing sight of the crucial issues around risk and reward that have been thrown into sharp focus by the crisis in the financial sector.”
So what have the CIPD done? – they’ve issued a press statement seeking to justify the payment of the bonus and caused consternation on the part of HR professionals in doing so.
Simon Howard, chairman of the Work Group, is forthright in his views:
Apart from asking itself how it got into this mess…the CIPD board should face up to the damage the row has caused – morale within the CIPD could not be lower and the business challenges it faces will not go away. While on the public stage, it is difficult to see how the CIPD can comment on the whole issue of rewards and the many failures of the bonus culture, when its own leader is seen to be a recipient of it.
In our September newsletter we reported the claim of PC Gurmeal Singh:
Sikh policeman says “I felt that I was on ‘Only Fools and Horses’”
Sikh police officer Gurmeal Singh has brought employment tribunal proceedings against Greater Manchester Police for religious and race discrimination on account of his turban. We could be forgiven for thinking that “the turban issue” was resolved in the early days of discrimination law when a high profile case was brought shortly after the Race Relations Act 1976 and led to the Motor-Cycle Crash Helmets (Religious Exemption) Act 1976. However, Mr Singh maintains that he was not allowed to use pedal cycles without wearing a helmet so that he had to cover the same area by foot “when others had the luxury of pedal cycle policing”. According to the SikhiWiki website (yes, it does really exist with that name), employers need to make suitable adjustments to allow Sikhs to wear turbans so that (as legislated by section 11, Employment Act 1989) Sikhs on construction sites do not need to wear safety helmets but damages for injuries are limited to those recoverable had a safety helmet been worn. Mr Singh also maintains that his application for promotion was held up for 18 months after an assistant chief constable expressed concern that he did not wear an official police badge on his turban.
Mr Singh says that when he was asked to wear a modified turban he felt that he was in a famous episode of ‘Only Fools and Horses’ in which Del Boy, taking a delivery of 200 “crash turbans”, said that they were the “essential accessory for fashion-conscious, motorbike-riding Sikhs throughout Peckham”.
Mr Singh has won his claim, at least in part. The tribunal found that he had been subjected to indirect discrimination and harassment. However, 13 of his 15 complaints were rejected and the tribunal found that he suffered a single case of indirect race and religious discrimination when he was included in a group email to officers confirming that riot training was mandatory and he would therefore have to remove his turban.
He was awarded £3,500 for indirect discrimination, £6,500 for harassment after suffering psychological damage, injury to feelings and personal injury and £1914 for loss of earnings. The case is reported to have cost £250,000.
The Health and Safety Executive has been criticised for running radio ads in which figures concerning work-related diseases caused by exposure to asbestos were stated as definitive when they were in fact based on estimates and overstating the number of deaths resulting from such exposure.
Five ads were broadcast as part of a campaign to raise awareness of the risk of exposure to asbestos, particularly in the building and general construction industries. The central messages included the assertions that every year more people are killed by asbestos than in road accidents and that a certain number of workers and tradesmen in particular categories would die each week, e.g. six joiners, six electricians, three plumbers.
The Asbestos Watchdog complained that the assertions were misleading and could not be substantiated because they were based on flawed calculations and exaggerations. Both complaints were upheld and the HSE was directed in a decision on 23 September that it must not broadcast the ads in their current form.
While the mesage which the HSE was concerned to get across was clearly laudable, the adjudication acts as a timely reminder that it is easy for organisations to overstate their cases, particularly when engaged in marketing and advertising activities. The TUC has described the ASA ruling as “unfortunate” but the point here is that, no matter how laudable the message, there is no excuse for not getting facts right. That applies to all, including those whose function it is ensure compliance with regulations!