News Update, Summer 1999 - Employment Law

With effect from 1 June 1999 the length of service an employee will need to establish (with the same employer) to acquire full employment protection was reduced from the current period of two continuous years to a period of one continuous year. All dismissals effective after 1 June 1999 will be subject to the new 1 year qualifying period.

The Order was brought in on 13 May 1999 under the terms of the Employment Rights Act 1996. The Order also allows for employees to request written reasons for dismissal after one year's continuous employment rather than two. The failure to do so will result in additional liability for the employer.

It is important to remember that the service qualification is only applicable to unfair dismissal claims. It has no application in respect of any claims involving dismissal on the grounds of discrimination (race, sex or disability), for some trade union or health and safety related reasons, on the grounds of pregnancy, for asserting a statutory employment right, in connection with Sunday working, or for carrying out duties as a pension trustee.

Under the Employment Relations Act (which codifies the Fairness at Work White Paper), the current cap on compensating awards in unfair dismissal cases is also to be increased from the current statutory maximum of £12,000 (for each case) to a new statutory maximum of £50,000. It is unclear at the moment precisely when this additional amendment is to be effected, but it seems likely that it will happen by Autumn. The precise implementation date is, at present, unclear but it seems likely that it will happen within the next 3 or 4 months.

The flow of decisions interpreting the Disability Discrimination Act continues unabated. Many of these cases address the level of knowledge attributable to, or enquiry required of, the employer to ascertain what the disabled employee's special needs are and to make the proper adjustments as required under the Act. Two recent cases may provide some reassurance:

Interview Conditions (see endnote 1) - An interviewee stated on her application form that she had photosensitive epilepsy and that the lighting in the room might cause her to need sunglasses. During the interview she neither wore sunglasses nor commented on the lighting. When she was unsuccessful at interview she claimed that the company had failed to make proper adjustments.

The tribunal turned down her claim - she should have given prior notice of any need for soft lighting and it was unreasonable to expect the company to question the applicant in exhaustive detail about her requirements. Moreover, on the facts, the interview conducted did not appear to have placed her at a substantial disadvantage.

Massage Needs - In a second case (see endnote 2), the employee advised the employer (a university) about the after-effects of an accident which he suffered which he said would continue to restrict his mobility. All went well for six years until he was moved to another unit against his wishes. He was also warned at this time about his failure to supervise his students.

He claimed that his condition had deteriorated but did not respond to the university's offer of an assessment. The university took medical advice on the basis of which it rejected his claim that his condition prevented him from supervising his students and subsequently suspended him. He claimed that he had been discriminated against on the grounds of his disability and also claimed that he had told the university of his need for privacy to carry out massage on himself and that privacy had not been provided.

The tribunal accepted that the dismissal was due to the failure to supervise rather than his disability. They also decided on the facts that his privacy requirements had never been previously communicated and took the view that the university could not reasonably have known that the lack of privacy would have adversely affected the employee.

Points to watch: if an employee or prospective employee indicates a disability, ensure reasonable adjustments are made. Carry out regular employee audits in respect of employees' fitness and condition and their working environment.

Whilst minimum statutory rights, not least in relation to maternity pay, cannot be reduced in an employment contract, a recent case in the European Court (see endnote 3) looked at certain employment contract clauses in relation to maternity rights in order to assess whether they were lawful under EC law.

These included clauses to the effect that:

• maternity pay in excess of statutory maternity pay must be repaid if the employee does not return after maternity for at least one month
• holiday only accrues in the basic 14 week maternity leave period
• require an employee who has expressed her intention to commence her maternity leave during the six weeks preceding the expected week of confinement, and is on sick leave with a pregnancy related illness immediately before that date and gives birth during the six week period, to bring forward the date upon which her maternity leave commences either to the beginning of the sixth week preceding the expected week of childbirth or to the beginning of the period of sick leave, whichever is the later
• after the initial fourteen week maternity period an employee must end her maternity leave in order to take sick leave
• pension benefits would only accrue during periods of paid maternity leave

The European Court decided that the first three clauses were legal. Also, with respect to the fourth clause, whilst the employee cannot be required to end the initial 14 week maternity period to take sick leave, she can be required to do so thereafter. As to the fifth, it was held that it was unlawful to make the accrual of pension rights during the minimum 14 week period conditional upon the receipt of pay during that period.

Points to watch: Employers are advised to review their maternity policies in the light of this decision.

ENDNOTES

1. Ridout v TC Group, Employment Appeal Tribunal Case, 1292/97 IRLR 628 (EAT)

2. Hanlon v University of Huddersfield, Employment Appeal Tribunal 166/98 PLC 98 9(10) 63

3. Boyle v Equal Opportunities Commission, European Court of Justice Case C-4112/96, 27 October 1998 (unreported)

Walker Morris Client Newsletters can serve only to alert the reader to recent developments and to act as a preliminary, but no comprehensive guide. They should not therefore be relied upon in place of specific advice.