Up close and personnel

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1 March / April 2013 Up close and personnel March / April is the monthly employment update service brought to you by Bristows' employment team. Increases to SSP, SMP, SPP and SAP The Social Security Benefits Up-rating Order 2013 was made on 11 March 2013 and details the increases to the weekly rates of statutory sick pay (SSP), statutory maternity pay (SMP), statutory paternity pay (SPP) and statutory adoption pay (SAP) for The Order states that: From 6 April 2013, the weekly rate of SSP will be (increased from 85.85). From 7 April 2013, the weekly rate of SMP, SPP and SAP will be (increased from ). Collective Redundancy Consultation Period From 6 April 2013, the collective redundancy consultation period (where more than 100 employees are affected) is halved from 90 days to 45 days. ACAS has published new guidance to help employers handle collective redundancies entitled How to Manage Collective Redundancies which can be found on the ACAS website by clicking HERE. Can obesity be a disability? In Walker -v- Sita Information Networking Computing Ltd 2013, the EAT held that a Claimant who suffered from a variety of different symptoms which had a significant impact on his day-to-day life which could not be attributed to a recognisable pathological or mental cause, and which were accentuated by his obesity, was disabled within the meaning of the Disability Discrimination Act 1995 (DDA). The Claimant suffered from asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains. These were compounded by his obesity (he weighed 21.5 stone/137 Forward to a colleague In this issue Increases to SSP, SMP, SPP and SAP Collective Redundancy Consultation Period Can obesity be a disability? Is it a reasonable adjustment to exclude a disabled employee from an absence policy? Static v. Dynamic interpretation of incorporated terms from collective agreements after a TUPE transfer. Where are we now? Whistleblowing Update Was it reasonable to use competency tests as part of a redundancy selection process? Awareness - Caste Discrimination Awareness - Consultation Paper on TUPE and Pensions Awareness - DWP revises fit note advice Linda Farrell Partner

2 kilogrammes). The Employment Tribunal had held that, because no physical or mental cause could be identified, there was no disability within the meaning of the DDA. The EAT overturned this decision, holding that the proper question was whether the Claimant had a physical or mental impairment and that it was wrong for the Employment Tribunal to focus on the cause of such an impairment. In this case, the Claimant was substantially impaired and had been for some time. However, the EAT did not accept that obesity renders a person disabled of itself, although it may permit an Employment Tribunal to conclude that a Claimant suffers from an impairment, or a condition such as diabetes (if that diabetes is such to have a substantial effect upon normal day-to-day activities). The Tribunal also stated that it may be relevant to ask whether the obesity might affect the length of time for which any impairment was to be suffered. If a Claimant was determined to lose weight, and it was confidently predicted that they could do so and reduce their weight to a normal level within a year, this could result in the Claimant no longer suffering from impairments which could confidently be ascribed to the weight itself. This would mean that there would be no disability because the impairments would not last for over 12 months. Is it a reasonable adjustment to exclude a disabled employee from an absence policy? About Us Justin Costley Lidia Poczok Clare Cruise Click HERE to find out about Bristows' Employment practice Click HERE to see previous Up close and personnel bulletins In Jennings -v- Barts and the London NHS Trust 2013 the EAT held that the dismissal of an employee on long-term sick leave was fair and that it would not have been a reasonable adjustment to modify the NHS s absence policy to accommodate him and enable him to remain employed for longer whilst his absence continued. In Olusogoa -v- Homerton University Hospital NHS Trust 2013, an Employment Tribunal held that use of the Bradford scoring system did not amount to indirect discrimination as it could be justified and that it would not be a reasonable adjustment to discount disability-related absences from the system. Mr Jennings had worked for the NHS for nearly nine years when he was dismissed because of his poor attendance record. Throughout his employment he had been intermittently absent due to recurrent short term illnesses. The NHS applied its absence policies and disciplinary proceedings were commenced. He was eventually given a first written warning. An Occupational Health report diagnosed PTSD and recommended a phased return to work. However, after a further meeting under the absence procedure, his manager decided that the continued absence was unfair to colleagues as his department was under pressure and there was a risk that Mr Jennings might never return to work. Mr Jennings was dismissed. He brought a Tribunal claim, arguing that it would have been a reasonable adjustment to exempt him from the short-term absence policy as it did not permit unplanned intermittent absences. The EAT upheld the Tribunal s decision that it would not have been reasonable to exempt Mr Jennings from the policy. Mr Olusoga was an administrator for the school nurses office. He had sickle cell anaemia and a long history of sickness-related absence which was mainly due to his disability. His employer used the Bradford scoring system which takes into account both the number of periods of absence and the total number of days of absence in a set period. He

3 claimed that the use of this system was a provision, criterion or practice which put disabled employees at a disadvantage as disabilityrelated absence was treated in the same way as absence which was not related to a disability. The Employment Tribunal noted the EHRC s Code of Practice which provides that employers are not automatically obliged to disregard all disability-related absences. It held in this case that it was a legitimate aim to seek to maximise in a fair manner the attendance of all of its employees, whether disabled or not. The policy was held to be proportionate means of achieving this aim. Both of these cases will be of interest to employers when considering what steps they need to take when dealing with employees who have a poor attendance record and need to be managed under the employer s sickness and absence policy. However, caution should nevertheless be exercised. It may still be reasonable to make adjustments to an absence procedure before dismissing an employee and employers should at least consider doing so. If it is decided not to make any adjustments then the reasons for this should be detailed and documented. If making use of the Bradford scoring system, employers will need to ensure that they can demonstrate that they have a legitimate aim if they are going to treat disability-related absence in the same way as non-disability related absence. Again, it will help if this is properly documented. Static v. Dynamic interpretation of incorporated terms from collective agreements after a TUPE transfer. Where are we now? In Alemo-Herron -v- Parkwood Leisure 2013 the Advocate General has issued an Opinion stating that it is possible to have dynamic interpretation of terms which are contained in collective agreements to which the new employer has not been a party, provided that this approach is not unconditional or irreversible, and it is for domestic legislation to determine the issue. If the ECJ follows this Opinion in its decision, then it is likely that the UK courts will have to reverse the current approach as taken in the Court of Appeal s decision on this matter: that the terms are static and crystallise at the point of transfer. Until the ECJ rules on the matter the uncertainty remains. One of the amendments to TUPE 2006 that is proposed in the current Government consultation is that terms originating from collective agreements should only be applied for one year post-transfer. However, the Government stated that it would await the outcome of the ECJ decision before taking this forward. Unless the ECJ does decide that static interpretation is required to preclude a breach of Article 16 of the Charter of Fundamental Rights of the European Union (freedom to conduct a business), we expect that TUPE will be amended so that a one year restriction on the applicability of collective terms will apply. Whistleblowing Update There have been several developments in relation to protection for workers who blow the whistle both in the Courts and as amendments

4 proposed by the Government to the Employment and Regulatory Reform Bill. In Onyango -v- Berkeley Solicitors 2013 the EAT held that a disclosure of information after employment ends can be a protected disclosure under the whistleblowing provisions of the Employment Rights Act This means that former employees and workers will be protected if they can show that they suffered a detriment for a posttermination protection disclosure. This is most likely to arise in a scenario where an employer refuses to provide an employee with a reference after the employee has left. The Government announced on 21 February 2013 that it will extend the protection available to whistleblowers. The Employment and Regulatory Reform Bill will be amended to: introduce a provision which treats detrimental acts of one coworker towards another who has blown the whistle, as being done by the employer and therefore makes the employer responsible; and provide a defence for an employer who is able to show that they took all reasonable steps to prevent the detrimental treatment of a co-worker towards another who blew the whistle. Was it reasonable to use competency tests as part of a redundancy selection process? In Mental Health Care (UK) Ltd -v- Biluan 2012 the EAT held that the employer acted unreasonably when it used a series of competency assessments (usually relied on to make recruitment decisions) to determine the capability of employees provisionally selected for redundancy. The employer had failed to make any reference to past appraisals of the employees or to consult their managers. There was also some inconsistency in the way that the selection criteria were applied. The Employment Tribunal commented that the employer had taken a lot of trouble over the redundancy selection exercise and put a lot of resources into it. However, this had resulted in an elaborate and HRdriven method which meant there was no input from managers and, because of its elaborateness, there was no consistency in its application. Employers should note the importance of consulting with managers and looking at past appraisals (if available) when conducting a redundancy selection exercise. Awareness Caste Discrimination On 4 March 2013 the House of Lords agreed an amendment to the Enterprise and Regulatory Reform Bill which was aimed at making caste discrimination unlawful under the Equality Act However, the amendment would have needed the support of the House of Commons before it could become law and, 3 days earlier on 1 March 2013, the Government announced that it had decided not to exercise

5 the caste power contained in the Equality Act 2010 at the present time. Consultation Paper on TUPE and Pensions The Government has issued a consultation paper seeking views on the proposed The Transfer of Employment (Pension Protection) (Amendment) Regulations The draft Regulations aim to clear up an ambiguity in the original rules which appear to allow an employee to choose their own pension contribution levels after a TUPE transfer, and also to remove a potential loophole in the overlap between TUPE and the new pension auto-enrolment rules which could leave transferred employees in a better position than if they had stayed with their original employer. The consultation paper can be found via the DWP website by clicking HERE. DWP revises fit note advice The Government has issued new Guidance for employers, employees and doctors on using fit notes to their full potential by looking at what a person can do, rather than what they cannot. The Guidance advises doctors on how they can give the most useful advice about what sick employees can do at work and how they can return to the workplace as soon as possible. The revised guidance can be found on the DWP website by clicking HERE. The information contained in this document is intended for general guidance only. If you would like further information on the above, or advice on any other employment law issues, please do not hesitate to contact a member of our employment team above. Update my subscription preferences Forward to a colleague Unsubscribe 100 Victoria Embankment London EC4Y 0DH T, F +44 (0) info@bristows.com, Bristows, see Terms of Use