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Latest Brief - Week Ending 24 October 2014

Should employers have to ignore earlier warnings for disabled employees?

No, says the Employment Appeal Tribunal.  

In General Dynamics Information Technology v Carranza a disabled employee was given a final written warning for his absence levels.  

His employer had made adjustments for his disability, including giving him extra breaks and time off for appointments. Also, whilst the employer's sickness policy had trigger points for formal action where an employee had four periods of sickness or 10 or more days' sickness in a rolling 12 month period, disability-related sickness was disregarded for trigger point purposes.  Although disability related absence could be taken into account in deciding what action to take once the procedure had been triggered. 

Mr Carranza had other absences (not related to his disability) which triggered the procedure. He was therefore issued with a warning, and then a final written warning for his absence levels, which were having a severe impact on his department. At the time of the final written warning, he had been off for more than 41 weeks over a 3 year period, of which nearly 37 weeks were disability-related.  

After the warning was issued, Mr Carranza was off for 2 short periods of disability related absence, which were ignored for trigger point purposes before going off again for 3 months with a shoulder injury, which was not linked to his disability.  The trigger point was therefore passed, and following a hearing, Mr Carranza was dismissed.  He brought claims for unfair dismissal and disability discrimination.  

The Tribunal found by a majority (the employment judge dissenting) that the employer had failed to make reasonable adjustments in not ignoring the final written warning.  It also found (unanimously) that the dismissal was unfair, as a reasonable employer would not have taken the final written warning at face value but would have looked at all of the circumstances surrounding it.  
On appeal, the EAT overturned both decisions and therefore found the dismissal to be fair. The EAT said that there was no proper basis for the Tribunal to find that ignoring the final written warning was reasonable. The EAT followed an earlier decision relating to misconduct dismissals, which said that a Tribunal's ability to reopen an earlier warning was very limited.   The Tribunal has to decide whether the warning is a circumstance which a reasonable employer could reasonably take into account. In deciding that, the tribunal should consider whether the warning was issued in good faith, whether there were prima facie grounds for giving it, and whether it was manifestly inappropriate.

Keeping quiet, won't necessarily work!

An outgoing employer has been ordered to pay £65,500 to the new employer when it failed to provide employer liability information about employees who were transferring under the Transfer of Undertakings (Protection of Employment) Regulations 2006 ('TUPE').  This only represented £500 per employee - the minimum amount which can be claimed - but this amount was found to be just and equitable in the circumstances.  It is a useful reminder to employers to ensure that they pass on the information required under TUPE.

Lates Brief - Week Ending 10 October 2014

Party political broadcast???

As it's the time of year for the party conferences, we thought it would be useful to know what you might be letting yourself in for at the next election.  These only relate to the main employment issues raised. 

If elected, the Labour party will:

Ensure equal rights for the self employed.  Increase the National Minimum Wage to £8 an hourProvide that companies with more than 250 employees be required to publish details of average pay of men and women at each pay grade

The Conservative Party has said that if elected, they will:

Introduce a new British Bill of Rights to replace the Human Rights ActEnd the use of exclusive zero hours contracts. Prevent the trafficking of workers through the Modern Slavery Bill 

The Liberal democrats will:

Increase to the national minimum wage for apprentices in the first year of their apprenticeship by over £1.Provide more assistance for litigants in person. Back provisions to allow Jobseekers' names to be blanked out for public sector jobs to avoid discrimination. 

Half term? Not for the High Court

The date for UNISON's second judicial review challenge of the employment tribunal fees regime has been set for 21 and 22 October 2014. This hearing at the High Court will consider the fresh evidence including the statistics for the fall in Tribunal claims since the introduction of the fees.
Was that a red light you just went through?

Police Scotland has reversed its decision to reject colour blind applicants for the role of police officer following a claim for indirect sex discrimination  by a candidate who was rejected for this reason.  His claim was for discrimination was on the basis that more men than women are colour blind.  Whilst the case did not reach the Employment Tribunal, the force has confirmed that the officer has now been accepted and former rejected candidates are to be contacted and invited to re-apply.