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Disability discrimination – reasonable adjustments

adrian-fryer

The duty to make reasonable adjustments is triggered if an employee meets the definition of disability contained in the Equality Act 2010. The employee must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to do normal day to day activities. There is a common misconception that disabled employees can ask for any changes they like and say they are ‘reasonable adjustments’. The reality is somewhat different. The duty to make reasonable adjustments only arises in specific circumstances, and the requirement is to make ‘reasonable’ – rather than any – adjustments.  In the recent case of Aleem v E-Act Academy Trust Limited, the EAT has looked at whether permanent pay protection is a reasonable adjustment when the employee can  no longer do the job for which they were originally employed.

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Whistleblowing

adrian-fryer Employers must not treat an employee badly because they have made a protected disclosure. If the main reason for dismissing an employee is that they made a protected disclosure, the dismissal will be automatically unfair. Usually, it is the facts known to the person making the decision to dismiss that are relevant to an unfair dismissal claim, rather than any other facts which might be known to other employees. In Royal Mail v Jhuti, however, the Supreme Court confirmed a narrow qualification to this rule: if a manager decides that an employee should be dismissed for one reason (for example, whistleblowing) but hides that behind another false reason (such as performance or conduct) which the dismissing officer adopts, then the reason for the dismissal is the hidden reason.

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Working time

adrian-fryer The CJEU has considered another case involving rest breaks that can be interrupted at short notice and whether they meet the requirements of the Working Time Directive. Article 2 says that working time is any period of time where the worker is working, at the employer’s disposal and carrying out their duties. A rest break is any period which is not working time. There is no halfway house here – time is either working time or a rest break. A series of European cases have looked at rest breaks which can be interrupted at short notice and whether that undermines the whole point of the WTD which is to promote health and safety.

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Burden of proof – discrimination

adrian-fryer The wording which sets out the burden of proof rules in a discrimination case changed when the Equality Act 2010 brought all the laws on discrimination together in one place. The discrimination legislation previously said that if the employee proves facts which, in the absence of a reasonable explanation, the tribunal could conclude was discrimination, the burden of proof shifts to the employer who must then show that there is another, non-discriminatory explanation for their treatment of the employee. If the employee didn’t prove those facts then the claim failed. This was often referred to as the employee showing a ‘prima facie’ case. In reality, tribunals would hear all the evidence, including the employers, before deciding about whether the burden of proof shifted to the employer to explain their behaviour, not least because the employer’s evidence may completely contradict the employee’s.  The Equality Act 2010 wording is slightly different – it says where there are facts rather than where the employee proves facts, which has caused confusion and some people to think that the rules have changed. The Supreme Court has now clarified the position in Royal Mail Group v Efobi.

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Flexible working

adrian-fryer

The government has published a consultation document – Making flexible working the default – which proposes various changes to the existing rights for employees to request flexible working. This consultation document comes hot on the heels of the widespread flexible working that business and workers have had to adopt in the wake of the Covid-19 pandemic. Homeworking has increased exponentially and been shown to work in many fields where it was previously rare. The pandemic has also created more awareness of the importance of work-life balance and caring responsibilities for children and family members who are unwell. Although some of this flexible working may not be sustainable in the long term, our eyes have been opened to what is possible and the government is seeking to capitalise on this opportunity.

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Socio-economic grouping

adrian-fryerMost employers have long been alive to issues of diversity in business in terms of protected characteristics such as  race, sex and disability. But what about class? Socio-economic grouping is not a protected characteristic, so is seeking to ensure a certain percentage of ‘working class’ employees a hurdle too far?

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The Future of Furlough and other employment issues arising from Covid-19

Adrian Fryer

The Coronavirus Job Retention Scheme (“Furlough Scheme”) has been a lifeline to many employers during the Covid-19 pandemic, allowing businesses to retain employees that would have otherwise faced redundancy, but the scheme is now winding down and the Government is encouraging employees back to work with the lifting of the last restrictions from 19 July 2021. The return to work and the winding down of the furlough scheme however mean that business will face new challenges.

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Indirect Discrimination

adrian_fryer

Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to all employees which disadvantages a group of people who share a protected characteristic (such as race or sex). Indirect discrimination can be justified if it is a proportionate way of achieving a legitimate business aim. In making their decisions, employment tribunals must take ‘judicial notice’ of facts that are so well known to the court system that they can be accepted without further enquiry. One of those universally accepted truths relates to what the Employment Appeal Tribunal has recently described as the ‘childcare disparity’, where women are less likely than men to be able to accommodate certain working patterns because of childcare responsibilities.

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