CIPD Event Newcastle 28 October 2008

1. CIPD Event Newcastle 28 October 2008 Joanne Holborn • Baines Wilson LLP • 2 Merchants DriveCarlisle, CumbriaCA3 0JW • T. 01228 552600F. 01228 549560E. law@baineswilson.co.ukW. www.baineswilson.co.uk

2. Recent Changes to Disability Discrimination Law

3. 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

4. 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

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

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

7. Discrimination by Association

8. Discrimination by Association • Coleman v Attridge Law • ECJ • EAT • purposive construction

9. Discrimination by Association • Disability discrimination • Refusing flexible work requests from carers • Sexual orientation • Religion and beliefs • Age

10. How to Make Reasonable Adjustments and Win in an Employment Tribunal

11. 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)

12. 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

13. 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

14. CASE STUDY

15. 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

16. 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

17. 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

18. 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

19. 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

20. Managing sickness absence

21. 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

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

23. 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

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

25. 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

26. 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

27. Thank you for listening • Any questions? • jh@baineswilson.co.uk • 01228 552600