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Posted 31 March 2015
by Stephen Jennings

Tozers employment law newsletter – Spring 2015

Meeting on shop floor

Reasonable adjustments – employee unfit to return – duty not triggered
The EAT has held that an Employment Tribunal was entitled to find that an employer’s duty to make reasonable adjustments was not triggered where a sick employee had not given any sign that she would be returning to work. The employee had given the impression that she would not be able to return any time soon, and her medical certificates continued to state that she was unfit for work. The EAT accepted the tribunal’s finding that the onus had been on the employee to suggest a lower-grade role, with a phased return, in the event that she became fit to do some work.

TUPE – you’ll never work alone…
The Court of Appeal has held that a commercial property manager, who was solely responsible for managing a group of Dutch properties for a client, was an “organised grouping of employees” for the purposes of regulation 3(3)(a)(i) of the TUPE regulations. Although she worked alone, she was effectively a one-person department and the employer had deliberately allocated her to the Dutch properties. Accordingly, when the management of the client’s entire portfolio was transferred to a subsidiary of the owner, there was a service provision change and the property manager transferred to the subsidiary. The fact that she had, in the past, assumed some responsibility for other properties did not undermine this, as she had always devoted the majority of her time to the Dutch properties, and so the “principal purpose” test was satisfied.

Non-payment of bonus to disabled employees was discrimination
The EAT has upheld an Employment Tribunal’s decision that an employer discriminated against disabled employees by operating a bonus scheme, which did not pay out to employees who had received a warning for high levels of sickness absence. The employer had reasonable adjustments in place to delay the issuing of a warning to an employee who was absent due to a disability. However, the fact that receiving a warning led to an automatic disqualification from the bonus scheme was discrimination arising from disability. It was irrelevant that the HR officer who made the decision not to pay the bonus had no knowledge of the employees’ disabilities; what was important was that the disability-related absences had led to the non-payment.

Limits on tribunal awards and statutory payments to increase from April 2015
Tribunal compensation limits will increase on 6 April 2015 under the Employment Rights (Increase of Limits) Order 2015. The maximum compensatory award for unfair dismissal will rise from £76,574 to £78,335. The maximum amount of a week’s pay, used to calculate statutory redundancy payments and various awards including the basic and additional awards for unfair dismissal, also rises from £464 to £475.

Nobody’s perfect (Mike and the Mechanics)
The EAT has held that an employer that took reasonable steps, but not every step possible, to ascertain whether an employee was disabled, did enough to avoid having constructive knowledge of the disability. The employer relied in part on a flawed occupational health report, but also took other steps, when concluding that the employee was not disabled. Accordingly, the employer made no adjustments, even though discrepancies in the report warranted further investigation. The EAT held that, when viewed as a whole, the employer had taken sufficient steps to avoid having constructive knowledge of the employee’s disability.

Drug-driving laws
On 2 March 2015, in England and Wales it became illegal to drive when over specified limits for specified controlled drugs. Illegal drugs, such as such as cannabis and cocaine, have very low specified limits while certain medicines have limits set higher than those expected for normal therapeutic doses. Further, there is a defence for someone over the limit but who has been taking drugs in accordance with medical direction and whose driving has not been impaired as a result.

Roadside testing will be used to establish whether any of the listed drugs are present, followed by forensic analysis of a blood sample taken at a police station to establish which drug is involved and the quantity in the blood.

The offence carries a mandatory disqualification and a maximum of six months’ imprisonment.

Action point: employers should check that driving policies and substance misuse policies reflect the current position.

Fit for work service
The Fit for Work (FFW) service rolled out nationwide on Monday 9 March 2015, with Rhyl and Sheffield the first areas to gain full GP access to the referral scheme. GPs in the Sheffield area undertook a trial of the new service earlier this year and the phased roll-out should be completed by the end of 2015.

Early conciliation: tribunal considers extension of time limits
An Employment Tribunal has held that claimants should be given the longest possible extension to the time limit to bring a claim under section 207B of the Employment Rights Act 1996. The judge held that the deadline to present a claim should always be extended by the “stop the clock” provision in subsection 207B(3), which extends the time limit by the number of days it takes to complete the early conciliation (EC) procedure. The deadline may then be extended further by subsection 207B(4) if the time limit, as extended under subsection 207B(3), would expire within one month of the date EC ended. The judge considered that the two subsections operate cumulatively, and not as alternatives. It would therefore be incorrect to only extend the original deadline under subsection 207B(4).

Further advice
Please contact our employment team at Broadwalk House, Southernhay West, Exeter EX1 1UA. Call 01392 207020 or email employment@tozers.co.uk

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About the author

Stephen Jennings

Partner

Partner in the litigation department specialising in employment law, he is the relationship manager for many of the firm's employment clients