Just a couple of employment up-dates you may find interesting.
We have been saying the LIFO, last-in-first out, is good law and has been since redundancy was introduced. However, since the introduction of age discrimination it is now thought to be discriminatory against younger people who tend to have less service. Let me know if you want advice on safe selection methods.
Web sites like MySpace and Facebook leave an old sod like me way behind - I am only just getting to grips with this blog.
It seems that people are getting into the habit of checking potential recruits on this web sites that can contain more personal detail than applicants may have declared to you in interview, their CV's or application forms.It is called 'cyber-vetting', 'netreps' by the way are internet reputations.
If you are an employer there is no reason why you shouldn't use this form of check but beware. Avoid printing out these details - you may be providing a paper trail for a discrimination claim. You cannot be sure who put the details on the web-site. Do not use the information in any other way than to ask questions at interview and also seek to support or otherwise by references, etc.
If you are applying for a job make sure that your entries on these sites are suitable - clean them up. Don't brag about the amount of ale you consume or demonstrate any negative feelings - you don't know who is looking!
What do you think?
Tuesday 31 July 2007
Tuesday 24 July 2007
OLLEH OLLEH OLLEH
Dyslexic Policeman is Disabled
A recent case raises some important issues relating to disability in general and dyslexia in particular.
We all know that dyslexia is a disability and the Employment Appeals Tribunal has recently held that a senior policeman who was diagnosed with minor dyslexia was disabled within the meaning of the Disability Discrimination Act 1995. [Patterson v Commissioner of Police for the Metropolis 2007]
This is unusual in that, after over 15 years in the police force, and promotion to the rank of Chief Inspector, P discovered he was dyslexic. He had not previously had difficulties with report writing, financial literacy or any of the other aspects in his complex and demanding job.
In the course of his employment he has taken various examinations at different stages of his career. He has had various managerial functions to perform. In particular, he has been commended on occasions by his supporting officer for writing good and clear reports. He was described in 2001, when he sought promotion, as "an able communicator – this has resulted in the production of a number of complex and detailed reports which are successfully supported in both criminal and disciplinary proceedings ….He has consistently produced work of high quality. This has been achieved despite the tight deadlines and the demanding environment present in his current role."
However, medical evidence suggested that he ought to be given 25% extra time in his examinations for promotion to the rank of Superintendent as a result of his (newly diagnosed) dyslexia.
The original tribunal took the view that a diagnosis was not a disability, and that the important thing to look at was what the Claimant could do, rather than what he could not do. They concluded that the dyslexia had only a minor/trivial impact upon the Claimant's day-to-day activities, and that he was therefore not disabled, a position that many, maybe, would see as reasonable.
The Employment Appeals Tribunal overturned this finding and substituted a finding of disability. They were of the opinion that a tribunal should not compare the performance of the employee with the average person in the population. Rather, it is the comparison between what the individual can do and would be able to do without the impairment which is important in determining whether someone is disabled. The EAT concluded it was self-evident that a person who needed 25% longer to complete an examination because of his dyslexia was at a substantial disadvantage to the position if he did not have dyslexia, and he was therefore disabled.
The EAT added that any finding to the contrary would undermine the whole purpose of the Act. Adding, "We are very conscious that the tenor of the statutory guidance and the large number of legal authorities on the issue of disabled status stress that it is important for Tribunals to concentrate on what a potentially disabled person cannot do rather than what he can do. We would not wish it to be thought that by recording the above paragraphs in what we believe to be a logical chronological fashion we have lost sight of that very important legal principle. It is however quite clear that although in a vague and general kind of way throughout his entire life until the age of 42 the Claimant was personally conscious of having difficulty nevertheless we believe that in ordinary parlance he has demonstrated that he was able to achieve a very senior position in a very structured and hierarchical organisation with we believe a considerable emphasis on paperwork and the accuracy, promptness and clarity of the written word.
We should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. (Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial. So too may what is "normal" best be understood by defining it as anything which is not abnormal or unusual or, in the words of the Guidance, "particular" to the individual applicant.)"
Comment
So, where does this take us?
It has been common place to make a ‘rule of thumb’, non-medical judgement based on what a dyslexic employee can in comparison to his or her peers; and make adjustments accordingly.
This case means that the emphasis is now on what a dyslexic employee cannot do rather than can do.
This other issue, it seems to me, is the question of ‘a substantial adverse effect’. If he achieved the level he did reach in 15 years service, the effect of his dyslexia, it could be argued, was substantial. However, the ETA has held that it was and it is now a situation we have to deal with in other cases.
What do you think?
A recent case raises some important issues relating to disability in general and dyslexia in particular.
We all know that dyslexia is a disability and the Employment Appeals Tribunal has recently held that a senior policeman who was diagnosed with minor dyslexia was disabled within the meaning of the Disability Discrimination Act 1995. [Patterson v Commissioner of Police for the Metropolis 2007]
This is unusual in that, after over 15 years in the police force, and promotion to the rank of Chief Inspector, P discovered he was dyslexic. He had not previously had difficulties with report writing, financial literacy or any of the other aspects in his complex and demanding job.
In the course of his employment he has taken various examinations at different stages of his career. He has had various managerial functions to perform. In particular, he has been commended on occasions by his supporting officer for writing good and clear reports. He was described in 2001, when he sought promotion, as "an able communicator – this has resulted in the production of a number of complex and detailed reports which are successfully supported in both criminal and disciplinary proceedings ….He has consistently produced work of high quality. This has been achieved despite the tight deadlines and the demanding environment present in his current role."
However, medical evidence suggested that he ought to be given 25% extra time in his examinations for promotion to the rank of Superintendent as a result of his (newly diagnosed) dyslexia.
The original tribunal took the view that a diagnosis was not a disability, and that the important thing to look at was what the Claimant could do, rather than what he could not do. They concluded that the dyslexia had only a minor/trivial impact upon the Claimant's day-to-day activities, and that he was therefore not disabled, a position that many, maybe, would see as reasonable.
The Employment Appeals Tribunal overturned this finding and substituted a finding of disability. They were of the opinion that a tribunal should not compare the performance of the employee with the average person in the population. Rather, it is the comparison between what the individual can do and would be able to do without the impairment which is important in determining whether someone is disabled. The EAT concluded it was self-evident that a person who needed 25% longer to complete an examination because of his dyslexia was at a substantial disadvantage to the position if he did not have dyslexia, and he was therefore disabled.
The EAT added that any finding to the contrary would undermine the whole purpose of the Act. Adding, "We are very conscious that the tenor of the statutory guidance and the large number of legal authorities on the issue of disabled status stress that it is important for Tribunals to concentrate on what a potentially disabled person cannot do rather than what he can do. We would not wish it to be thought that by recording the above paragraphs in what we believe to be a logical chronological fashion we have lost sight of that very important legal principle. It is however quite clear that although in a vague and general kind of way throughout his entire life until the age of 42 the Claimant was personally conscious of having difficulty nevertheless we believe that in ordinary parlance he has demonstrated that he was able to achieve a very senior position in a very structured and hierarchical organisation with we believe a considerable emphasis on paperwork and the accuracy, promptness and clarity of the written word.
We should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. (Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial. So too may what is "normal" best be understood by defining it as anything which is not abnormal or unusual or, in the words of the Guidance, "particular" to the individual applicant.)"
Comment
So, where does this take us?
It has been common place to make a ‘rule of thumb’, non-medical judgement based on what a dyslexic employee can in comparison to his or her peers; and make adjustments accordingly.
This case means that the emphasis is now on what a dyslexic employee cannot do rather than can do.
This other issue, it seems to me, is the question of ‘a substantial adverse effect’. If he achieved the level he did reach in 15 years service, the effect of his dyslexia, it could be argued, was substantial. However, the ETA has held that it was and it is now a situation we have to deal with in other cases.
What do you think?
Monday 23 July 2007
Employment Issues
I have not used the blog for a while. I intend to use it more and would welcome comments,
Paid Holidays
The Working Time (Amendment) Regulations 2007 have just been issued after the end of the consultation period. The minimum paid annual holiday entitlement for full-time workers of 24 days still comes into force from 1st October 2007. However, the second stage increase from 24 to 28 has been delayed until 1st April 2009.
A new provision in the regulations is that employers will be able to pay staff in lieu of the extra days, i.e. 20 to 24 (4 in total) until 1st April 2009 – but not, of course, for the original 20!
Sorry, there is no opt-out for small businesses.
“Gingerism”
My latest edition of the CIPD journal reports a case from Plymouth where a woman successfully claimed unfair dismissal after she was harassed because of her hair colour. The employment tribunal found that she had been subjected to ‘regular sexual harassment and innuendo” after being taunted about the colour of her hair and experiencing lewd and embarrassing comments.
Some may find this funny but an award against the ex-employer of £17,618 is not so humorous, plus the costs of defending the claim. As a first level tribunal case it is not a precedent but watch out.
The story points that there have been cases in US were discrimination on grounds of tattoos and facial piercings can be a form of religious discrimination. Do they not say that the weather comes from the US?
The bottom line is "get to know how your staff behave towards each other – you could be liable if you don’t have policies and raise awareness!"
Age Discrimination - Interviews
In May, the Director of the Equality Tribunal in the Republic of Ireland published a decision on age discrimination likely to be relevant in the UK.
In the case, the complainant was asked questions about his age at an early stage of the interview process, including questions on the application form such as "living with parents/ renting/ mortgaged accommodation", "number of children", "age" and "date of birth".
The complainant provided incorrect information, objecting the questions were "irrelevant and invasive". He was not given the job, despite being suitable for it. The Equality Officer held that he had been discriminated against on grounds of his age, and awarded him 5,000 Euro.
. . . and finally
Maternity Leave for Fathers
The provision to transfer up to 26 weeks’ additional paternity leave on top of the existing two weeks’ paid leave is out for consultation. There will be an administrative obligation for employers to check the father’s entitlement. On the positive side, the draft suggests that father’s should give a minimum of eight weeks’ notice. Target date is 1st April 2008, I will keep you informed.
Paid Holidays
The Working Time (Amendment) Regulations 2007 have just been issued after the end of the consultation period. The minimum paid annual holiday entitlement for full-time workers of 24 days still comes into force from 1st October 2007. However, the second stage increase from 24 to 28 has been delayed until 1st April 2009.
A new provision in the regulations is that employers will be able to pay staff in lieu of the extra days, i.e. 20 to 24 (4 in total) until 1st April 2009 – but not, of course, for the original 20!
Sorry, there is no opt-out for small businesses.
“Gingerism”
My latest edition of the CIPD journal reports a case from Plymouth where a woman successfully claimed unfair dismissal after she was harassed because of her hair colour. The employment tribunal found that she had been subjected to ‘regular sexual harassment and innuendo” after being taunted about the colour of her hair and experiencing lewd and embarrassing comments.
Some may find this funny but an award against the ex-employer of £17,618 is not so humorous, plus the costs of defending the claim. As a first level tribunal case it is not a precedent but watch out.
The story points that there have been cases in US were discrimination on grounds of tattoos and facial piercings can be a form of religious discrimination. Do they not say that the weather comes from the US?
The bottom line is "get to know how your staff behave towards each other – you could be liable if you don’t have policies and raise awareness!"
Age Discrimination - Interviews
In May, the Director of the Equality Tribunal in the Republic of Ireland published a decision on age discrimination likely to be relevant in the UK.
In the case, the complainant was asked questions about his age at an early stage of the interview process, including questions on the application form such as "living with parents/ renting/ mortgaged accommodation", "number of children", "age" and "date of birth".
The complainant provided incorrect information, objecting the questions were "irrelevant and invasive". He was not given the job, despite being suitable for it. The Equality Officer held that he had been discriminated against on grounds of his age, and awarded him 5,000 Euro.
. . . and finally
Maternity Leave for Fathers
The provision to transfer up to 26 weeks’ additional paternity leave on top of the existing two weeks’ paid leave is out for consultation. There will be an administrative obligation for employers to check the father’s entitlement. On the positive side, the draft suggests that father’s should give a minimum of eight weeks’ notice. Target date is 1st April 2008, I will keep you informed.
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