Jobsworth by Michael Scutt » Age Discrimination

Case Round Up 25th January 2010

Michael Scutt — Mon, 25 Jan 2010 10:07:17 +0000

There have been some interesting reported cases over the last couple of weeks on a broad range of topics. For instance,

Legal Representation at Internal Disciplinary Hearings

In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk. In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught. He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing. Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children. The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA. Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector. For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.

Age Discrimination

The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age. However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen. However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector. In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.

Disability Discrimination

The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year. The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA. In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section. In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be.

If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk

Case Round Up 25th January 2010 originally appeared on Jobsworth by Michael Scutt on 25/01/2010.

Seven Ways for Employers to Avoid Stress at Work Claims

Michael Scutt — Tue, 19 Jan 2010 10:00:45 +0000

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”. Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination. All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal. Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful. There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell. Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.

How to mitigate the risk of these claims arising?

1. Adopt best practice

The Health & Safety Executive publishes a great deal of information on the subject. In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change. The TUC and ACAS also publish useful materials on stress at work.

2. Be aware.

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out. This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW). The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”. The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress. An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.

Take action before it is too late

3. Have a stress policy and adhere to it

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.

4. Act fairly and consistently

Stress claims can arise from incidents of bullying/harassment and victimisation. Put in place policies promoting equality in the workplace – and enforce them. Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion. An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.

5. Contracts of employment (1)

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report. This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.

6. Contracts of employment (2)

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting. Employees tend to become well again once they are not being paid. SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15. Click here for more details on SSP. Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own. Please seek legal advice before deciding to do so.

7. Act decisively

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it. Take legal advice as soon as possible.

Related posts: Coming Soon … Miserable Monday

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.

None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you. You should not rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation. I am always happy to provide legal advice via Dale Langley & Co.

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.

Seven Top Stress Management Tips for Employees

Michael Scutt — Mon, 18 Jan 2010 10:20:35 +0000

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author. His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October. Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services. Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees.

Today, Ian focusses on how employees can manage stress.

1. Identify and write down your major stressors

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important.

2. Establish some goals and objectives

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010.

3. Develop a Personal Relaxation Plan

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress.

4. Give yourself some thinking time

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?”

5. Be positive

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.”

6. Practice good time management

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan!

7. Keep a Stress Diary

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas.

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level.

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk. The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Seven Top Stress Management Tips for Employees originally appeared on Jobsworth by Michael Scutt on 18/01/2010.

Bankers and Age Discrimination

Michael Scutt — Wed, 13 Jan 2010 10:00:50 +0000

Over on the Dale Langley & Co website I have written about the recently reported case of age discrimination by Achim Beck at his former employer, CIBC. Click here for the post. The case was reported on Times Online on the 29th December. Although Mr Beck has succeeded with his claim, the Employment Tribunal has not yet made an award of compensation and a “remedies hearing” for that purpose is awaited in due course, unless it settles beforehand. I’ll keep an eye out for what could be a big award.

Bankers and Age Discrimination originally appeared on Jobsworth by Michael Scutt on 13/01/2010.

Heyday loses

Michael Scutt — Fri, 25 Sep 2009 11:02:51 +0000

Hot off the press comes news, via the BBC website, that the Heyday challenge to the default retirement age has been defeated in the High Court. This means that it is not illegal for employers to insist that an employee retires on their 65th birthday, although that conflicts with the Age Discrimination legislation. At the moment I have not seen the rationale for the decision but will post on this again when I have.

I have written about this long running case on several previous occasions. This looks like the end of it now though because the charities behind the action are not going to appeal. The government has already said that it intends to review the default retirement age next year, so it may well go in due course anyway.

This result is bad news though for all the people who have had their claims in the Employment Tribunals stayed (“parked”) whilst awaiting the outcome of this case. Employers meanwhile will be celebrating.

If you require any further advice on this (or any other topic) please contact me at michaelscutt@dalelangley.co.uk or 0207 464 8433

Heyday loses originally appeared on Jobsworth by Michael Scutt on 25/09/2009.

Things employers shouldn't ask …

michaelscutt — Wed, 02 Sep 2009 08:00:20 +0000

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family. Nor should they now ask potential employees how old they are. The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years. The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies. However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement. The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”.

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds. I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time. He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed. The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

Things employers shouldn't ask … originally appeared on Jobsworth by Michael Scutt on 02/09/2009.

Do Jobsworths wear moustaches?

michaelscutt — Wed, 15 Jul 2009 08:11:20 +0000

Bob Ainsworth, the Defence Secretary, has come under fire for not only being a political lightweight out of his depth in one of the most important offices of state, but also for wearing a moustache (well, we are approaching the silly season). An article at www.timesonline.co.uk/tol/life_and_style/men/article6709864.ece suggests that a moustache often signifies the wearer is homosexual or, of more importance to this blog, that it is a symbol of ”the constipated mentality of an inept, small-town jobsworth”, being the impression that Mr Ainsworth’s “facial furniture” gives to some. I make no comment on that.

Luke Leitch, the author of the article, also mentions notable other Jobsworths, including the bus-conductor Blakey from On the Buses - the inspiration for this blog. I can just see him now saying “I hate you Butler” (or should that be “I hate you Mandelson”?) Marvellous.

This Jobsworth doesn’t wear one by the way. Mrs J wouldn’t hear of it.

On the subject of the family we’ve just come back from a relaxing family holiday (there’s a non sequitur for you) and I am still in holiday mode. I was interested to read that the government wants to review the default retirement age of 65. This announcement comes in the week that the Heyday challenge makes its long circuitous route back to the High Court. I doubt that we’ll get Judgment this week, of course, but at long last the end may be in sight.

Whether the government’s decision to review the state retirement age has anything to do with them contemplating defeat in the High Court I couldn’t say but with increasing numbers of pensioners to support in the next thirty plus years it makes sense to allow those who want to carry on working able to do so. There is a mechanism in place at the moment where employees can ask to work on after the default retirement age but it is a bit of a palaver and, like many people, I cannot see how a default retirement age does not discriminate against older people.

More to come on this.

Do Jobsworths wear moustaches? originally appeared on Jobsworth by Michael Scutt on 15/07/2009.

Rolls Royce v Unite: an update

michaelscutt — Mon, 08 Jun 2009 06:48:38 +0000

On the 28th November last year I posted on the above case, which was heard in the High Court, on the redundancy criteria used by Rolls Royce when selecting candidates for redundancy. Please see that post for more details of the criteria used. The interesting point about this particular case is that it looked at the interplay between redundancy selection criteria and the Age Discrimination legislation. Rolls Royce were seeking a declaration from the Court that their redundancy criteria, which added one point per year of service to individual employees’ scores (in addition to the scores they received for various other criteria) WAS in breach of the Age Discrimination regulations. This is because employees with longer service would get more points and was thus indirectly discriminatory towards younger employees.

The case then went to the Court of Appeal, which upheld the High Court’s decision. The result of this case is that it is not a breach of the age discrimination to award employees points for length of service. Those regulations do provide that an employer may justify a policy that is, on the face of it, age discriminatory, provided they can justify the reason for the policy. The High Court viewed rewarding loyalty to longer serving staff and recognising that older employees would probably struggle more to get new employment than younger people as sufficient justification.

The rather unusual factor here was that it was Rolls Royce seeking to overturn its agreed redundancy policy and wanted the court to find that its policy was in breach of the age discrimination regulations. The company clearly wanted more flexibility in being able to select candidates than its policy allowed and it was the Union that was defending the existing policy, which it had negotiated on behalf of its members in less difficult times.

Ultimately this decision is probably going to be of limited value apart from in large companies that have collective agreements with their (unionised) workforces that have been in place for some time and pre-date the introduction of the Age Discrimination regulations in 2006. In those situations it will be of help to the older worker. Elsewhere the situation is likely to remain the same. What this decision doesn’t allow is for older employees to claim positive discrimination in their favour. The redundancy selection criteria used by employers is open to challenge in all cases, if an employee thinks they have been discriminated against on grounds of age (or other discriminatory factor) but this result is likely to be of academic interest only.

It would, perhaps, have carried more weight if it had been the decision from the Court of Appeal following a case that had been heard before an Employment Tribunal and then the Employment Appeal Tribunal, rather than a rather “academic” analysis of the law by the High Court but, nonetheless, it is a useful addition to the employee’s (and Claimant’s solicitor’s armoury

Rolls Royce v Unite: an update originally appeared on Jobsworth by Michael Scutt on 08/06/2009.

The latest on Heyday

michaelscutt — Fri, 06 Mar 2009 19:06:33 +0000

Regular readers may recall I’ve been following the tortoise like progress of the challenge against the “default retirement age” (“DRA”) of 65 that is enshrined in the Age Discrimination legislation. It is becoming a bit like the case of Jarndyce v Jarndyce in Bleak House, the Chancery case that went on for so long no one could remember what it was originally about. Basically, Heyday, part of Age Concern allege that having any fixed retirement age is inherently discriminatory. The Age Discrimination Regulations allow discrimination only if it can be objectively justified – ie that the employer has a good reason for imposing the restriction. In this case the Defendant is the government.

Last September the Advocate General of the European Court of Justice produced his opinion stating that the DRA was not in breach of the Equal Treatment Framework Directive and, on the issue of whether having a DRA at all was discriminatory, he recommended that the matter be referred back to the UK courts for a decision. The ECJ has followed this recommendation, as expected and so the whole case grinds on.

Commentators seems split over whether this is good news for employers or bad for employees. It certainly is disappointing for all those people whose cases in the ET have been stayed pending the decision, because it will be several months before the High Court hears it and many more months before any subsequent appeals are held thereafter. It doesn’t help employers either as they won’t know where they stand with employees coming up to 65. Finally, it doesn’t help Employment Tribunals because more and more age discrimination claims are being lodged and then getting blocked in the system awaiting the final result. Like Jarndyce v Jarndyce, this one will run and run.

This article will appear in the “Docklands” and “Peninsula newspapers week commencing 9th March.

The latest on Heyday originally appeared on Jobsworth by Michael Scutt on 06/03/2009.

Redundancy and Age Discrimination

michaelscutt — Fri, 28 Nov 2008 11:33:08 +0000

Over the last few weeks I’ve been writing about the various issues surrounding redundancy procedure and selection. A couple of weeks ago an interesting High Court case was reported which dealt with the issues arising on redundancy where selection on the grounds of age became relevant. The case in question was Rolls-Royce v Unite, and was unusual in that the employer was seeking to argue that its own selection criteria was age discriminatory and the Union was arguing that it was not. Normally, of course, one would expect the positions to be reversed.

In this case, Rolls Royce operated a selection criteria that gave points for various factors, such as skill and expertise, achievement of targets, contribution to the business, self-motivation and, particularly relevant for these purposes, length of service. Those with fewest points overall were selected for redundancy. The effect of the length of service factor meant that workers with long service would gain more points and thus be less likely to be selected for redundancy than workers with shorter service who were more likely, therefore, to be younger. Rolls Royce argued that this policy was indirectly discriminatory because it favoured older workers.

The Court disagreed and held that such a policy could be justified by the employer (justification for a policy that is otherwise discriminatory being a defence under Age Discrimination legislation) on the grounds that the policy fulfilled a “business aim”, namely it was a contractual benefit rewarded employees loyalty and also that older workers would find it harder to obtain alternative employment upon redundancy. The scheme was also found to be a means of enabling redundancies in the workforce to be handled “peaceably”.

What does this case mean for employees and employers? For businesses it is a double-edged sword because although on the one hand they may be relieved to know that the application if such a selection policy will not land them with claims for age discrimination, it also means that the flexibility they seek in selecting candidates for redundancy is reduced. Remember, in this case it was Rolls Royce that sought to argue its own policy was discriminatory. The case is also good news for older employees with long service and less good for those with shorter.

This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 1st December.

Redundancy and Age Discrimination originally appeared on Jobsworth by Michael Scutt on 28/11/2008.