Employment Law Bulletin - Issue 145 - 3 April 2013

Wednesday 3 April 2013

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Employment News

Labour considers move to boost workers' rights
Labour is considering introducing a new fair work commission which will seek to bring together existing enforcement bodies aimed at securing workplace rights, and acting as a champion for vulnerable employees. Click here to read the article.

EHRC publishes guidance to businesses
The Equality and Human Rights Commission has launched advice for businesses on how to prevent discrimination and avoid costly legal challenges. The Equality Act: Guidance for Small Business explains how the 2010 Equality Act relates to their operations and what they need to do to ensure they stay within the law. It includes practical advice on managing important business challenges such as recruitment and promotion.


Consultation on the administration of shared parental leave and pay
The Government believes shared parental leave and pay will give parents more choice and flexibility in how they share the care of their child in the early stages following birth. This consultation sets out proposals for how the scheme will work in practice. The consultation closes on 20 May 2013. Click here to download the consultation documents and to respond.

Employment Case Law

Disability Discrimination | Reasonable adjustments

Foster v Cardiff University, 27 March 2013 UKEAT 0422/12
The Claimant was employed as an academic at the Respondent university's business school and suffered from Chronic Fatigue Syndrome, a recognised disability. The EAT (Singh J) among other issues, dealt with the question of comparators in relation to whether the employer had failed to make reasonable adjustments. In considering this issue, the EAT took the opportunity to remind Tribunals (and practitioners) that the comparator (whether real or hypothetical) should not be imbued with the disability characteristics of the claimant, but rather should not have a disability at all. The EAT cited with approval the words of Langstaff J in Royal Bank of Scotland v Ashton [2011] ICR 632, who said at paragraph 14 of the judgment:
"A close focus upon the wording of sections 3A(2), 4A and 18B shows that an Employment Tribunal - in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination - must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled."
Click here to read the judgment.

El-Kholy v Rentokil Initial Facilities Services (UK) Ltd UKEAT 0472/12
In circumstances where a claimant retains the services of a solicitor to act on his behalf and fails to serve the ET1 within the three-month time limit for unfair dismissals, the fact that it is the legal adviser who is to blame for the late service will frustrate any attempt by the claimant to argue that it was not reasonably practicable to file the ET1 within the prescribed time limit. So held the EAT (Slade J) in upholding the decision of the Employment Judge below to refuse an application to extend time for service of the ET1. Click here to read the full judgment.

Walker v Sita Information Networking Computing Ltd UKEAT 0097/12
The claimant suffered from a number of symptoms, causing significant difficulty in his day-to-day life. The symptoms could not be attributed to a recognisable pathological or mental cause, but were regarded as functional overlay, accentuated by his obesity. The genuineness of the symptoms and their effects were not challenged. The Employment Judge hearing the claim fell into error in concluding that because no physical or mental cause could be identified, therefore there was no disability within the Disability Discrimination Act 1995. Is obesity an impairment within the sense of the statute? The EAT (Langstaff J) held that it was. Click here to read the judgment.

Fox Cross Claimants & Others v Glasgow City Council & Others UKEAT 0027/12, UKEAT 0028/12, & UKEAT 0029/12
The Respondent local authorities decided to cease undertaking certain activities (e.g. providing leisure facilities) and instead passed the provision of these services variously on to community interest companies and limited liability partnerships (LLP). The EAT (Langstaff J) held that the LLPs were still caught by s.1(6) of the Equal Pay Act 1970, and so the female claimants working for the respondents could properly compare their wages with those of a man working for the LLP. Otherwise the respondents could all too easily evade the anti-discrimination provisions of the EqPA and disparity might flourish. Click here to read the full judgment.

Employment Law Events

Are you ready for all the new law? The legislative changes to employment law this year
17 April 2013, London

The Employment Lawyers Association will host a one-day course at Royal College of Gynaecologists and Obstetricians, 27 Sussex Place, Regent's Park, London NW1 4RG. Up to 5.25 CPD points are available. Click here for full details.

Back to the Future: the Employment Law policies of the Coalition
17 April 2013, London

The Industrial law Society will host The Bill Wedderburn Memorial Lecture at The Royal College of Surgeons of England, 35-43 Lincoln's Inn Fields, London, WC2A 3PE. Click here to book places.


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