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...
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