Friday, 16 June 2017

Capability and the re-deployment argument

 The Claimant in this case was dismissed on the grounds of capability.She lost her claim of unfair dismissal after the ET found that the Respondent had a genuine belief that the Claimant's capability fell below a standard that they considered acceptable and she had not been dismissed for raising an issue of overwork.The Claimant appealed on the grounds that an employer should consider redeployment prior to making a decision to dismiss on capability grounds.

The EAT dismissed the appeal.The Employment Judge did not err in law in the way he approached the question whether the Respondent ought to have found redeployment for the Claimant after her dismissal on capability grounds.

Awojobi v London Borough of Lewisham UKEAT/0243/16/LA

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Self-incrimination and employment tribunal procedure examined

The Claimant was dismissed after the Respondent found he had been dishonest.He brought a claim of unfair dismissal at the ET. At the hearing,one of the Respondent's witnesses said they had heard that the police had referred his case to the CPS (although no criminal charges were ever brought).

The EJ decided that the Claimant should not give evidence because of the privilege against self-incrimination and he continued the case without the Claimant being cross-examined.He dismissed the claim and the Claimant appealed.

The EAT allowed the appeal.The Claimant's evidence,and cross examination apon it,was relevant to the issues the Employment Judge had to decide.He should not have proceeded without hearing it,and the Claimant's representative did not consent to that course.

The Employment Judge had not,however,been bound to adjourn the case.He could and should have waited to see if the Claimant  had claimed any privilege against self- incrimination and made an application to adjourn.He should have considered any application to adjourn having regard to the submissions of both parties.

Coletta v Bath Hill Court (Bournemouth) Management Co.Ltd. UKAET/0297?16/RN

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Friday, 19 May 2017

Psychometric Test Ruled Discriminatory

 Recruitment agencies will need to be careful about adjustments to the format of recruitment assessments for disabled job applicants,after a ruling by an EAT.The tribunal had ruled that an applicant with Asperger's syndrome was unfairly disadvantaged by an online multi-choice psychometric test.

The claim was brought by an aspiring lawyer, Ms Brookes, who suffers from Asperger's syndrome.She applied for a job as a trainee solicitor with the Government  Legal Service (GLS).

The application began with a "fiendishly competitive" online "situational judgment test (SJT).Ms Brookes asked if she could submit her answers in a short narrative form because of her condition. However,she was told that an alternative test format was not available.

Ms.Brookes completed the SJT test in its multiple-choice format and scored 12 out of 22.The pass mark to proceed to the next stage of the recruitment process was 14.

Her employment tribunal case included a claim for indirect  disability discrimination.The tribunal   accepted that the multi-choice format put her at a particular disadvantage because of her condition.

The GLS appealed against the decision,but the subsequent EAT accepted that her condition had affected her ability to complete the multiple choice assessment and that the GLS should have adapted the test for her.

The Government Legal Service v Brookes (2017)UKEAT 0302

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Claim struck out due to witness speaking to others during break

Reporter's Case Struck Out

A tribunal has struck out a BBC reporter's claim after finding that she discussed her case with  a newspaper journalist  during an adjournment when giving her evidence.The tribunal held that a BBC journalist,Sally Chidzoy's discussion with the journalist during a break in her evidence while still under oath was "unreasonable conduct" that justified her claim being struck out.

The tribunal concluded that a fair trial was no longer possible because it had lost all trust in the claimant.It also ruled out restarting the case with a different panel because the claimant had almost completed her evidence. Beginning again could lead to disputes over any changes in evidence given to the first and second tribunal.

Ms S Chidzoy v British Broadcasting Corporation. UKET 3400341/2016

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Wednesday, 5 April 2017

Type 2 Diabetes May be A Disability

The EAT has overturned an employment tribunal's decision that a man suffering from Type 2 diabetes was not disabled.The judge had not properly considered whether his Type 2 diabetes was a progressive condition.He should have considered whether the condition was likely to result in a substantial adverse effect on normal day to day activities and the medical evidence had been inadequate in this regard as it had not considered the future prognosis.

In Taylor v Ladbrokes Betting and Gaming,Mr Taylor suffered from Type 2 diabetes.He was dismissed and claimed disability discrimination. Based on written medical evidence,the employment judge ruled that he was not disabled.His condition was controlled by medication.The medical evidence also indicated that he could easily control his condition by means of lifestyle,diet and exercise.

Mr Taylor appealed to the EAT,who upheld his appeal and sent the case back to the employment tribunal to consider again.

Case reference:

Saturday, 18 March 2017

New Compensation Limits in Tribunals

The compensation limits for certain awards made in Employment Tribunals will increase from April 6th,2017. The increases apply to dismissals occurring on or after that date.

*The maximum compensation award for unfair dismissal increases from £78,926 to £80,541.

*The cap for a week's pay (used to calculate basic awards and statutory redundancy payments) increases from £479 to £489.

*The minimum award for certain unfair dismissal claims increases from £5,853 to £5,970.

If you are considering or are making redundancies (or maybe parting company with an employee by agreement) on or after April 6th,2017 you will need to make sure that you are using the correct cap for the weekly pay figure in your calculations.

New ACAS Guidance on Gig Economy

New guidance to help employers understand gig economy working has come from the Conciliation Service Acas.Its updated guidance outlines different types of employment status following recent high-profile  court judgements involving companies such as CitySprint and Uber.
Acas says its aim is to "provide some clarity on the various different types of ways that people can work and the employment rights that they are entitled to". Head of guidance at Acas,Stewart Gee,says:" Many businesses and their staff may not realise that a working person's employment rights  very much depends on their status.
"A person who is self-employed or defined as a worker is likely to have different legal rights to someone else who is considered an employee".
The guidance covers the three main types of employment status:employee,worker and self-employed.In the latter case,the guidance has been expanded to look at how the relationship works if someone operates through an umbrella company or agency.