Thursday, 17 July 2014

Obesity may constitute a 'disability'

The Advocate General has, today, issued an opinion on this point in Kaltoft v The Municipality of Billund.

The opinion considered whether obesity fell within the definition of a disability.  The Advocate General pointed out the EU definition of disability covers the situation when a physical or mental condition makes "carrying out of that job or participation in professional life objectively more difficult and demanding. Typical examples of this are handicaps severely affecting mobility or significantly impairing the senses such as eye-sight or hearing."

He expanded on his initial thoughts:

"cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the UN Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability."

Watch this space for test cases in UK tribunals.

Saturday, 24 May 2014

Unison fights on with permission to challenge fees

Employment lawyers have welcomed a High Court decision to support recently-introduced employment tribunal and employment appeal tribunal fees.
Trade union Unison challenged the Government’s decision to introduce the fees in court, arguing they would bar workers treated unfairly by employers from accessing justice.
Unison argued that since the fees were introduced, the number of employment cases had fallen sharply. It presented research suggesting Equality Act discrimination claims had fallen by 88% between September 2012 and September 2013. 
In the same period, Unision suggested sex discrimination claims had fallen by 86% and unfair dismissal claims by 81%.
Despite these findings, the High Court ruled it was too soon to judge if the fees would have a negative impact following their introduction in July 2013. 

Wednesday, 21 May 2014

A great basic guide to the new compensation rules

See Morton-Fraser's site for a helpful chart setting out the new employment tribunal compensation rules here

Monday, 19 May 2014

High Court Scuppers attack on 1 yr salary compensation cap but there may be round 2

At a permission hearing The High Court has pulled the rug from under an ingenious bid to judicially review the cap which means that the maximum compensatory award a tribunal can make is a year's gross salary (which, today itself, is capped at £76,574).

Alex Monaco said the cap on compensation will disproportionately affect older people, as they are most likely to receive more than a year’s salary in compensation due to difficulty in finding another job.

 Monaco said in the Gazette: ‘We are looking at options and looking at appealing it.’ He said the firm is seeking pro bono help from lawyers to fight the ruling.

Friday, 25 April 2014

A Database of 'Reasonable Adjustment' Claims

I have listed some judgments below and the types of reasonable adjustment claims which have worked before in the ET. Contact me if you know of any others......

Reasonable Adjustments:

Paying for private medical treatment to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work.

Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12

Allocating some of the disabled person's duties to another person;

Transferring him to fill an existing vacancy

Returning to work on a phased return/and or in a temp role -   Fareham College Corporation v Walters Appeal No. UKEAT/0396/08/DM UKEAT/0076/09

Altering hours of working or training;
Costco Wholesale UK v Newfield UKEAT/0617/12/KN - reducing hours
and Secretary of State for Work and Pensions v Higgins. Appeal No. UKEAT/0579/12/DM

Assigning him to a different place of work or training;
Newcastle City Council v Spires UKEAT/0334/10/ZT

Allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
working from home - Secretary of State for Work & Pensions v Wilson UKEAT/0289/09/DA

Giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
Acquiring or modifying equipment;
Modifying instructions or reference manuals;
Modifying procedures for testing or assessment; - Burke v The College of Law & Anor [2012] EWCA Civ 37
Providing a reader or interpreter;
Providing supervision or other support.''
Failure to provide psychiatric services - Croft Vets v Butcher Appeal No. UKEAT/0430/12/LA UKEAT/0562/12

Dismissal - Fareham College Corporation v Walters (see above).
In this case, the employer laid itself open to criticism and a finding that it failed to
make reasonable adjustments.  Its conduct provides a list of ‘actions to be avoided
at all costs’:  

• The manager dealing with the capability procedure did not have any knowledge
or understanding of the claimant’s underlying condition;
• The respondent did not have up to date medical reports as to the claimant’s
position or prognosis;
• The manager who concluded that it was unlikely that the claimant would be
able to return to her position on a full time basis was unable to explain the
reasoning which led him to that conclusion;
• The respondent failed to consider that allowing the claimant to return using a
phased return or in an alternative role might only be necessary in the short
term, and therefore in dismissing the possibilities due to the difficulties such
steps would have on educational delivery, failed to demonstrate that the
adjustments were not reasonable under s.18B.

Chief Constable of South Yorkshire Police v Jelic UKEAT/0491/09/CEA
chronic anxiety syndrome - 1) he should have been deployed into a non client-facing officer role rather than retired.

Are tribunal numbers really down?

According to Government sources the number of ET cases submitted have fallen astronomically by 70% since fees were introduced. This seems incredulous when the employment lawyers I talk to say they are just as busy. After all many claimants have union support and those with home contents insurance are covered and can approach Direct Access Barristers and Solicitors for employment claims.

Wednesday, 17 July 2013

Lamentable new rule on EAT appeals

Amendments to the EAT Rules have turned up a howler and represent an affront to justice in my view:

The 1993 EAT Rules have been amended in the Employment Appeal Tribunal (Amendment) Rules 2013, ahead of the introduction of the government's new fee regime for enforcing employment rights. The amendments come into force on the same day - 29th July 2013.

The end of the automatic entitlement to an oral hearing (a so-called 'rule 3(10) hearing') after the sift stage, if the Appellant wishes to challenge the assessment of an EAT Judge that the Notice of Appeal discloses no reasonable grounds for bringing the appeal. Now if an EAT Judge considers that an appeal is "totally without merit" he can order that a party is "not entitled to have the matter heard before a Judge" at a rule 3(10) hearing.

There have been plenty of appeals where they have been refused on the papers but at least the Appellant is permitted to orally try and explain herself. Many of these appeals go on and win. Now this opportunity will be dashed at the strike of a pen.

If the Government wanted to save money then charge for it is my view.

European challenge please somebody!