Employment Update - Summer 2009

This update keeps you informed of new developments in employment

law and focuses particularly on an extension to the scope of

disability discrimination legislation and a Court of Appeal ruling

concerning an employer reserving its position in relation to facts

which it later attempts to rely on as grounds for summary

dismissal.

A Costly Mistake

A tribunal has ruled that an employer is obliged to continue

paying a part time bank worker her full time salary, despite a

mistake.

The claimant had worked for a bank for a number of years in a

part time role and in 2006 there was a TUPE transfer. Prior to the

transfer there was an expectation amongst employees that rates of

pay would increase. Miss Keenan was on a salary of £9,500

prior to the transfer; afterwards she received a statement that her

basic salary was £17,000, which she regarded as a substantial

and overdue pay rise. Barclays never queried the discrepancy; the

bank even provided a reference confirming her salary when she

applied for a loan in 2008. The bank also gave her regular pay

rises - including a £3,000 performance-related bonus -

without spotting the error.

The tribunal found that the term relating to salary did not have

to be substituted by the 'correct' term as the employee had

no actual knowledge of the mistake.

She therefore won the right to remain on the higher wage and was

not required to repay the £20,000 in extra pay she had so far

received as it was entirely due to the bank's error.

Extension Of The Scope Of Disability Discrimination

Legislation

The House of Lords has made an important ruling in a recent case

which means that employees are now more likely to be able to

demonstrate that they have a disability and are, as such, entitled

to the protection of the Disability Discrimination Act 1995 (the

DDA).

In SCA Packaging Limited v Boyle [2009] UKHL 37, it was

held that where an impairment 'could well' have a

substantial adverse effect on an employee's ability to carry

out normal day-to-day activities, were it not for the fact that

measures were being taken to treat or control it, impairment could

constitute a disability. Previously, employees were required to

pass the more difficult test of showing that it was 'more

probable than not' that they would suffer such a substantial

effect, were it not for any treatment they may be receiving.

Employers therefore need to ensure that the provisions of the DDA

are always carefully considered, even where an employee may not

appear to have a 'disability'.

Section 1(1) DDA states that: 'a person has a disability

for the purposes of this act if he has a physical or mental

impairment which has a substantial and long-term effect on his

ability to carry out normal day-to-day activities'.

This definition is key to employers, since all employees who are

considered to have a disability for the purposes of the DDA are

protected against discrimination, victimisation and harassment

before, during and after their employment. In addition, employers

are expected to make 'reasonable adjustments' to

accommodate such employees. The DDA sets out a non-exhaustive list

of steps which may be taken by the employer in this regard,

including making adjustments to premises, allocating some of the

disabled employee's duties to another employee and altering the

disabled employee's hours of work or training. Whether or not

there is a duty in...