Posts Tagged ‘discrimination’

Employers are required to make ‘reasonable adjustments’ to prevent their disabled workers from being placed at a substantial disadvantage in comparison with persons who are not disabled. This may arise in the context of enabling a disabled person to remain in work or, as in this case, to facilitate a disabled employee’s eventual return to work after a period of long term sick leave.

The employee argued that the employer’s failure to have taken certain steps amounted to a failure to make reasonable adjustments and was therefore a breach of the employer’s duty. In this case the Employment Appeals Tribunal considered what amounts to a reasonable adjustment in the context of an employee who was disabled by virtue of her suffering from chronic fatigue syndrome.

The EAT said that adjustments that do not have the effect of alleviating a disabled person’s substantial disadvantage in comparison with persons who are not disabled do not amount to reasonable adjustments for the purposes of the law in this area. Accordingly the EAT held that the following did not amount to reasonable adjustments:

• the production by an employer of something that the employee could take to their GP to sign him or her off for some form of ‘light duties’ (even if such duties consisted of non-productive work) as a form of rehabilitation;

• the granting of permission for an employee to take a career break.

In giving its judgment, the EAT also said that consultations, trials and exploratory investigations do not amount to reasonable adjustments.

The EAT also had to decide whether the employee had a claim for constructive unfair dismissal. It decided that she did not. There had been no ‘last straw’ which had resulted in her resignation, the employer’s behaviour had not amounted to a serious breach of the terms of the contract of employment (the employer had not destroyed the relationship of trust and confidence) and there had been no failure on the part of the employer to make reasonable adjustments.

As to what amounts to a reasonable adjustment will depend upon the circumstances of a particular case. In a case concerning an employee who has been on long term sick leave reasonable adjustments may include allowing a phased return to work, changing their working hours or allowing them to work from home.

Case reference: Salford NHS Primary Care Trust v Mrs A F Smith

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A claim of indirect religious discrimination failed when an employer’s refusal to allow a Moslem employee leave from the work site for Friday midday prayers was held to be objectively justifiable. It is important to take the circumstances into account because this employer had made efforts to accommodate the religious belief. In this case, the employee had access to a prayer room on site and had been offered the chance to work shifts avoiding Fridays. The security firm (employer) concerned was committed by contract to provide a certain number of guards on the site at any time.  The case is Cherfi v G4S Security Services.

UK employment law distinguishes between direct and indirect discrimination and indirect discrimination is less clear cut than direct discrimination. Here claimant employees have to show that some provision, criterion or practice has been applied to them which in practice has the effect of putting people who share their protected characteristic (here being Moslem) at a disadvantage compared with others.

The EAT upheld the Tribunal’s judgment, finding that the Tribunal had carried out the necessary balancing exercise between the operational needs of the employer and the disadvantageous effect on the employee and was right to conclude there was no indirect discrimination.

The EAT said that it would have “taken as correct” the approach suggested in Woodcock v North Cumbria Primary Care Trust [2011] (another EAT case), that as long as a policy is proportionate, costs alone might justify that policy.

However, employers should consider all the factors in context before deciding to discriminate as the outcome could be expensive!

‘Religious belief’ includes for example Christianity, Islam, Judaism, Rastafarianism, Sikhism, Zoroastrianism and denominations or sects such as Methodism within Christianity and Sunni within Islam. It also covers philosophical beliefs such as humanism and atheism for example. Other philosophical beliefs may be protected if they meet certain characteristics, for example a belief in the importance of climate change. However a belief in white racial supremacy would not be protected because it is not compatible with human dignity and does not respect the rights of others. Such a belief would not meet the criteria laid down by the courts.

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In October 2010 the Equality Act will make it unlawful to ask job applicants about their health. The thinking behind this move is that employers are discriminating at application stage against applicants with mental health issues and other disabilities. 

I personally find this unhelpful because if interview panels cannot ask applicants about their disabilities how are reputable employers supposed to help applicants overcome them in the work environment!  Companies urged to review applicant health questionnaires – Telegraph. ELE will shortly produce a pre-employment application pro forma to assist ELE members with this process. We will notify members when it is issued.

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