CIPD Event Newcastle 28 October 2008 Joanne Holborn Baines Wilson LLP 2 Merchants Drive Carlisle, Cumbria CA3 0JW T F E. W.

Recent Changes to Disability Discrimination Law

Disability Related Discrimination A person discriminates against a disabled person if: For a reason relating to the disabled person’s disability, he treats him less favourably than he treats, or would treat, others to whom that reason does not or would not apply He cannot show how the treatment is justified

Comparators Mayor and Burgesses of the London Borough of Lewisham v Malcolm 2008 Possession Proceedings Who is the correct comparator? a non disabled employee who has been absent for the same period as the disabled employee

Comparators Reduces the scope of the DDA More difficult for a disabled employee to establish disability related discrimination

Employers Beware A different approach may be permissible in employment cases Reasonable adjustments – interpret this duty more widely? Equality Act may restore the position

Discrimination by Association

Coleman v Attridge Law ECJ EAT –purposive construction Discrimination by Association

Disability discrimination Refusing flexible work requests from carers Sexual orientation Religion and beliefs Age

How to Make Reasonable Adjustments and Win in an Employment Tribunal

Reasonable Adjustments “Where a provision, criteria or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer places the disabled person at a substantial disadvantage in comparison with persons who are not disabled, the employer has a duty to take such steps as it is reasonable, in all the circumstances of the case, to prevent the provision, criteria or practice or physical feature, having that effect” (S4A(1)DDA1995)

DDA – Desirable Adjustments Adjustments to premises Allocating duties to another employee Transferring to an existing vacancy Altering hours of work or priority timing Assigning disabled employee to a different place of work Acquiring or modifying equipment Providing a reader or interpreter

DRC Code – Reasonable Adjustments Conducting a proper assessment of what reasonable adjustments may be required Permitting flexible working Allowing disability leave Modifying discipline or grievance procedures Adjusting redundancy selection criteria

CASE STUDY

Reasonable adjustments – what will a Tribunal look for An assessment A consultation with the employee Help from outside agencies? Medical evidence? Trial periods? Effect on workforce as a whole O’ Hanlon v Commissioners for Inland Revenue & Customs 2007

Reasonable adjustments – what will a Tribunal look for Claimant’s representative should particularise what he/she says are reasonable adjustments at an early stage Employer can then show why it wasn’t reasonable May require expert evidence

Reasonableness – the DDA The effectiveness of the step in ameliorating the disadvantage The practicality The cost and disruption The resources available to the employee The availability of external assistance The nature and size of the organisation

Reasonableness – the DRC Code The number of employees requiring the adjustment The employees co-operation The nature of the employees experience and expertise to the employer

Reasonable Adjustments The range is limitless Employees point to things an Employer has not done Relationship with constructive unfair dismissal Duty is with the Employer What is reasonable is a question for the Tribunal A Tribunal can substitute its own view for that of the Employer

Managing sickness absence

Introducing sickness absence management Do you have a procedure? Is your existing procedure contractual? You will require employee agreement to vary existing terms No procedure Engage employees to introduce a new policy Explain your business reasons Explain the changes/new procedure to employees

Introducing sickness absence management Make your attendance policy part of your induction process Make it part of your appraisal process Make line managers accountable

Introducing sickness absence management Keep accurate records of absence Record all absence Measure the cost of absence in all departments Employees to complete self certification forms Carry out return to work interviews Train line managers

Introducing sickness absence management Cautions not warnings Non contractual Develop triggers Calling in and keeping in touch Eligibility for company sick pay Consistent treatment

Tools for tackling short term absence Rigorous notification procedure Return to work interviews Should all short term absences be counted? Medical evidence? Withholding sick pay SDDP will apply Employee health initiatives

Tools for tackling long term absence Keep in touch Early intervention 4-6 weeks Consider temporary adjustments Be proactive in asking for medical advice Preferably OHP

Thank you for listening Any questions?