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May 2010 Updates

Disability discrimination and reasonable adjustments

The Employment Appeal Tribunal has decided in Chief Constable of South Yorkshire Police v Jelic, that swapping the role of a disabled employee with that of another (non-disabled) employee is capable of being a reasonable adjustment for the purposes of the Disability Discrimination Act. The Employment Appeal Tribunal also found that there is no reason why the retirement of an employee on medical grounds, and their re-engagement in a new role, cannot constitute a reasonable adjustment.

Misconduct dismissals and police involvement

The Employment Appeal Tribunal has held in Secretary of State for Justice v Mansfield, that where an employee facing disciplinary proceedings is at the same time being investigated by the police, the employer's decision-maker has a wide discretion on whether to continue, or postpone, the disciplinary hearing. In this case, the employee faced a police investigation in relation to allegations of planting drugs. The disciplinary investigation arising from the same facts was postponed during the police investigation. The Employment Appeal Tribunal decided that the employer?s postponement of the disciplinary investigation could not properly be criticised as unreasonable.

Conduct dismissals

The Court of Appeal has handed down its decision in Salford NHS Trust v Roldan, which states that:

  • The more serious the consequences of dismissal for the employee, the more careful an investigation is required to be. In this case, a more careful investigation was needed because the consequence of dismissal was that the employee would be deported.
  • An employer faced with a conflict of evidence between two witnesses is not obliged to believe one employee and to disbelieve the other. If it is unable to resolve the conflict, it is perfectly proper to give the alleged wrongdoer the benefit of the doubt.

Advising on compromise agreements

The case of McWilliam & Others v Glasgow City Council considered the issue of compromise agreements, and the need for an employee to receive independent advice as to the terms and effect of the agreement, in order for it to be valid. The Tribunal held that it is not necessary that the advice is such as would allow the employee to make an informed decision. All that is required is that the employee is advised on what the terms of the compromise agreement are, and what they mean. This would include the scope of the claims, which claims are being compromised and how any payment would be treated for tax purposes. This is to be distinguished from an assessment of whether or not the agreement is a 'good deal' for the employee.

Uplifts in awards for failing to comply with the ACAS Code of Practice

The Employment Appeal Tribunal has held in Lawless v Print Plus, that, in choosing the size of the uplift for a failure to follow the provisions of the Code on disciplinary and grievance procedures (which can be up to 25%), the relevant factors to be considered by a Tribunal include:

  • Whether the provisions of the Code were ignored altogether or applied to some extent.
  • Whether the failure to comply with provisions of the Code was deliberate or inadvertent.
  • Whether there are circumstances which may mitigate the blameworthiness of the failure.
  • The size and resources of the employer.

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