Legal hot topics

1. Legal hot topics Diana Kloss Barrister

2. Disability discrimination • Amendments to the definition of disability: • Mental impairment does not need to arise from a clinically well-recognised mental illness • HIV, MS and cancer are disabilities from diagnosis • High Quality Lifestyles v Watts (2006)

3. Reasonable adjustment • The employer has a duty to make a reasonable adjustment to sick pay for a disabled employee • Meikle v Notts CC (2004) • But this does not mean that a disabled employee is entitled to unlimited sick leave and sick pay • Royal Liverpool Children’s NHS Trust v Dunsby (2006) • O’Hanlon v Commissioners of Inland Revenue (2006)

4. Stress-related illness • Employer must do a risk assessment: it is advisable to use HSE guidance, though no legal obligation to do so • Employer is only liable for psychological illness if could reasonably foresee that the work might make the employee ill (not just tired or unhappy!) • Sutherland v Hatton (2002) • The availability of a confidential counselling service assists the employer to prove that reasonable care has been taken, but it is not a guarantee that the employer will not be liable

5. Employer’s knowledge of clinical details • Hartman v South Essex Mental Health Trust (2005) • The employer is not deemed to know information confided in OH when the employee is suing for personal injury for work-related stress • But what about the Disability Code of Practice (revised 2004)?

6. OH reports • What happens when the OH professional’s opinion conflicts with that of the clinician? • First Manchester Ltd v Kennedy (2005) • Scottish Courage Ltd v Guthrie (2004) • Can an employment tribunal overrule the opinion of an OH professional by accepting new medical evidence? • Post Office v Jones (2001) • Paul v National Probation Service (2003)

7. Duties to workers abroad • Criminal laws eg HSWA do not have extra-territorial effect • The duty of care in the civil law does extend to those working abroad and the employer must take reasonable care eg by providing vaccinations, security • An employee is entitled to refuse to travel to a place where he will be in great danger eg Baghdad (but not members of the armed forces!)

8. Unfair dismissal • This protects employees working abroad where • he is peripatetic but based in GB • he is posted abroad for the purposes of a business carried out in GB • he is working abroad in what amounts to an extra-territorial British enclave in a foreign country • Serco Ltd v Lawson (2006)

9. Discrimination laws • Eg Disability Discrimination Act 1995 • These apply to workers who are ordinarily resident in GB either at the time they apply for or are offered employment or at any time during the course of employment, as long as they work for an employer who has a place of business at an establishment in GB

10. Protection from Harassment Act 1997 • The employer is vicariously liable under the Act for a manager’s bullying and harassment if committed in the course of employment • Majrowski v Guy’s and St Thomas’s NHS Trust (2006) • Must be 2 or more incidents, but employer has no defence that did not know about bullying and had anti-bullying policy if it was done in the course of employment

11. Age discrimination • Regulations came into force October 1 • Apply to both young and older workers • Default retirement age of 65, but employer will have to justify lower retirement age • No upper limit to redundancy, unfair dismissal • Stereotypes must be avoided: each worker should be treated as an individual • Employer must justify any discrimination eg requirement that employee has qualifications because those are relevant to the job