Just because a disabled employee is off sick due to their disability there is no requirement to pay them more in sick pay than any other employee who is not disabled.

This was the EAT judgment of August 4 given in the case of O’Hanlon v The Commissioners for HM Revenue & Customs [2006] (UKEAT/0109/06).

Mrs O’Hanlon worked for HM Revenue & Customs and had a number of absences related to her disability (clinical depression). Under her employer’s sick pay policy Mrs O’Hanlon had used up her entitlement to 26 weeks’ full-pay and was put onto half-pay. Mrs O’Hanlon claimed that the failure to continue paying her full-pay amounted to both unjustified disability related discrimination and involved a failure of her employer to make a reasonable adjustment on grounds of her disability.

The employment tribunal took the view that Mrs O’Hanlon received exactly the same as any other employee who was absent for such lengthy periods. Therefore, her reduction to half-pay was not related to her disability but rather to the application of her employer’s sick pay policy.

However, the EAT considered that the employment tribunal had been wrong to compare Mrs O’Hanlon with a non-disabled person also absent for the same length of time. The reason that Mrs O’Hanlon had been absent from work for so long was due to her disability. Therefore, it could be argued that Mrs O’Hanlon had been discriminated against on grounds of her disability. But was the continued payment of full pay to a disabled employee after 26 weeks a reasonable adjustment the employer ought to make on grounds of an employee’s disability?

The EAT agreed that there was no reasonable adjustment which could be made to the level of sick pay to favour disabled employees. In fact there were powerful economic reasons for the rule adopted. It would cost a very significant sum to pay full pay to all disabled employees absent sick in circumstances where their pay would otherwise be reduced. Therefore, a failure to increase pay for disabled employees was justified.

The EAT’s final conclusion was that although there had been a case of disability discrimination, the employer was justified in not making a reasonable adjustment that would have the result of increasing sick pay for disabled employees. Source: Employment Appeal Tribunal,

August 7, 2006

The draft National Minimum Wage Regulations 1999 (Amendment) Regulations 2006 have been laid before Parliament, with a commencement date of 1 October 2006.

They raise the normal NMW from £5.05 to £5.35 per hour, and the two subsidiary rates in reg 13 from £4.25 to £4.45 and from £3.00 to £3.30. In addition, the amount permitted by reg 36 to be taken into account for accommodation is raised from £3.90 to £4.15 per day.

Harvey on Industrial Relations & Employment Law Bulletin, August 10, 2006

The Department of Trade and Industry (DTI) has published the draft Maternity and Parental Leave etc and Paternity and Adoption Leave (Amendment) Regulations 2006, intended to implement a number of the changes enabled by the Work and Families Act 2006.

Among the changes is the removal of the current six months’ service requirement for an employee to claim additional maternity leave.

Any employee who qualifies for ordinary maternity leave will now automatically qualify for additional maternity leave, regardless of the length of her service. The distinction between the two different kinds of leave is to be retained, however, so as to continue to provide for slightly different rights on returning to work after ordinary and extended maternity leave.

In addition, the amount of notice an employee intending to return early from additional maternity or adoption leave must give their employer is to be doubled from 28 days to 8 weeks.

Perhaps the most notable feature of the Regulations is the introduction of ‘keeping in touch days’ whereby an employee on maternity (or adoption) leave can agree with her employer to work for up to 10 days during the statutory maternity leave period, without that work bringing her period of maternity leave to an end.

Employers will not, however, be obliged to offer – nor employees to accept – such work, and the Regulations provide for the Employment Rights Act 1996 to be amended so as to confer protection from detriment or dismissal in respect of undertaking or not undertaking work during ‘keeping in touch days’.

Provided the Regulations gain Parliamentary approval, they will come into force on 1 October, with the amendments taking effect in relation to employees whose expected week of childbirth, or expected date of adoption, is on or after 1 April 2007. Further information: Copies of the Regulations are available from: www.opsi.gov.uk/si/si2006/draft/ 20064772.htm

www.idsbrief.co.uk, July 6, 2006

The law provides that where the statutory grievance procedures apply an employee may not lodge a claim with an employment tribunal until at least 28 days have elapsed since lodging a grievance with the employer (Employment Act 2002 s.32(3)(b)).

Presumably by drafting oversight, the wording means that the full 28 days must elapse even if during that time the employer has held a meeting with the employee and has formally dismissed the grievance – a tribunal simply has no jurisdiction to entertain a claim which is lodged prematurely. In this case Mrs Lumb lodged a grievance with her employer concerning a sex discrimination matter, the employer rapidly determined this against her and she presented a tribunal claim – but 28 days had not passed since she lodged the grievance. The employment tribunal therefore had to find it had no jurisdiction. Nevertheless recognising that Mrs Lumb could still lodge fresh claims in time, the tribunal made “provisional conclusions” which were in favour of Mrs Lumb. She then lodged her claims afresh. When they were heard the tribunal refused to allow the employers to adduce fresh evidence or to make further submissions as this would allow them a second bite of the cherry. The EAT has allowed an appeal by the employers against that refusal.

www.emplaw.co.uk, August 2, 2006

Helen Green, 36, sued her former employers Deutsche Bank Group Services claiming harassment from fellow colleagues and a lack of managerial support; allegations which were denied by the firm.

Ms Green said she underwent psychiatric distress due to the behaviour of four women in her department which she described as “offensive, abusive, intimidating, denigrating, bullying, humiliating, patronising and infantile”.

She experienced panic attacks on her way to work and suffered a nervous breakdown in 2000. She returned to work the following April but suffered a relapse; her job was kept open until September 2003 when her employment was terminated.

The judge said that the behaviour of Ms Green’s colleagues amounted to a “deliberate and concerted campaign of bullying within the ordinary meaning of the term” and described the bank’s management as “weak and ineffectual”.

He awarded her £35,000 for pain and suffering, £25,000 to account for her disadvantage on the labour market, £128,000 for previous loss of earnings and £640,000 for future loss of earnings including pension. The bank was also ordered to pay Ms Green’s legal costs.

Susan Gordon, an employment lawyer at Nabbaro Nathanson, said that the case was unusual as it was a High Court claim for personal injury rather than an employment tribunal claim for discrimination or unfair dismissal.

“Following a Court of Appeal decision in 2002, the bar for employees bringing these sorts of claims has been pretty high,” said Ms Gordon.

“It must have been pretty serious bullying or a sustained campaign of harassment – and Deutsche Bank must have failed to take reasonable steps to protect her – for Helen Green to have won. The level of damages would reflect both her physical injury and her likely loss of earnings as a result.”

Times, August 1, 2006

The European Commission has said that headline reports such as ‘EU gives green light to refuse smokers a job’ and ‘EU allows discrimination against smokers’ are misinterpretations of the EU’s position.

The Commission clarified its position following news stories in relation to a recruitment advert placed by an Irish company which stated that “smokers need not apply”. The Commission’s initial response, following a question from a concerned constituent, concluded that the advertisement did not breach anti-discrimination laws; this led to headlines indicating that the EU had said that it was acceptable to discriminate against smokers.

Clarifying the EU’s position, the Commission said that the Charter of Fundamental Rights clearly stated that the EU was against any kind of discrimination. Under EC Treaty Art.13, the Commission has the power to legislate in certain areas on anti-discrimination, but the fact that such legislation did not cover non-discrimination of smokers did not mean that the Commission regarded such discrimination as rightful.

The Commission concluded that people should be employed on the basis of their skills and qualifications and that it had strong doubts that it was politically acceptable to discriminate against smokers.

EUROPA press release, August 8, 2006

A former policeman has lost a case in which he claimed he was being discriminated against for being gay. The Nottingham Employment Tribunal ruled the allegations made against Nottinghamshire Police by Ben Stokes were unfounded.

Mr Stokes, 23, from Bingham in Notts, claimed he was victimised after fellow officers found out he was in a relationship with a 16-year-old. His legal team said they would appeal against the decision.

Mr Stokes made 29 allegations against the force, including failure to investigate hate crimes against him and aggressively pursuing an investigation into his conduct. He claimed to have gone from “enthusiastic and confident” to “suicidal” after officers found his entry on a gay dating website.

The tribunal ruling found there was no evidence to support the allegations.

A spokesman for Nottinghamshire Police said: “The investigation into Mr Stokes’ conduct was launched over issues of general competence and had nothing to do with homophobia.”

BBC News, August 2, 2006

The Advisory Conciliation and Arbitration Service’s Annual Report for 2005/06 shows that the number of claims taken to employment tribunals rose by 25 per cent from the previous year.

There were 109,712 applications to tribunals compared with 81,833 the year before; unfair dismissals continued to be the largest category of complaint, with 35,944 applications. But the number of requests for ACAS to intervene in large-scale disputes fell to 952 from 1,123 in 2004/05. The issue of pay continues to be the single biggest category of dispute.

The annual report also shows record numbers of people using ACAS’s helpline and website services to get advice on employment-related issues. Calls to ACAS’s national helpline rose for the fourth consecutive year to 908,553, compared to 880,787 last year. The top three topics covered by the calls were discipline and grievance, maternity/paternity and redundancy.

There was also a rise in people using the ACAS website, to 1.7 million visits. Its e-learning packages, ranging from absence-management to harassment, attracted 25,000 registered users; the most frequently viewed website pages were the A-Z of Work and Rights at Work.

ACAS chair Rita Donaghy said: “We have had another busy and challenging year. Our commitment to improving organisations through better employment relations continues to drive the development of new ACAS services.

“Last year, we introduced the ACAS Model Workplace to help organisations identify the features of an effective workplace, developed key partnerships, prepared new guidance for the age regulations and continued to help small businesses develop good employment practices.”

Advisory, Conciliation and Arbitration Service, July 26, 2006

Office bullying is on the rise, yet employers are failing to take the problem seriously, a new study shows.

A survey of 2,000 managers and 1,300 workers conducted by law firm Peninsula found that bullying was a growing problem. Most of the workers questioned by Peninsula reported having felt intimidated by a co-worker or manager yet just one in ten said that they would complain.

Four out of five employees felt that their complaint would not be treated seriously.

The findings come shortly after the £800,000 damages payout to city worker, Helen Green, over bullying at Deutsche Bank. Peter Drone, managing director of Peninsula, said: “This poll highlights serious concerns faced by employers regarding the growing issue of bullying in the workplace.

“Most seriously that few employers believe their companies are suffering at the hands of bullying, yet a high percentage of employees have been victims.

“This suggests that workers do not feel confident enough to tell their bosses they are being bullied, notably because they feel they would not be taken seriously.

“By taking such a stance towards bullying, employers are attempting to brush the problem under the carpet, which can have serious consequences.”

Peninsula press release, August 2, 2006

Employers could be prosecuted for failing to pay employees who sleep on the job, following a ruling by the Employment Appeal Tribunal (EAT).

An Edinburgh EAT ruled that the Learmouth Hotel was contractually obliged to pay William Anderson, a hotel manager, for sleeping at the hotel overnight.

Mr Anderson was required to be present at the hotel in case of emergency, but was only required to work once over a nine-month period when he had to deal with some rowdy guests. Learmouth Hotel, part of the Jarvis group, argued that “on call” time, where the risk of being required to work was insignificant, should not be regarded as working time.

But the EAT found that the time during which Mr Anderson was contractually obliged to be at the hotel was working time and that he was entitled to be paid for it.

www.caterersearch.com, July 20, 2006