Employment Law E-Bulletin Issue 37

• Donelien v Liberata UKEAT/0297/14/JOJ – Knowledge of disability critical to discrimination finding
• Sparks and another v Department for Transport [2015] EWHC 181 (QB) and Norman and others v National Audit Office UKEAT/0276/14/BA – Can an employer make unilateral changes to terms and conditions of employment?
• Changes to Employment Law in April 2015

Donelien v Liberata UKEAT/0297/14/JOJ – Knowledge of disability critical to discrimination finding

The Claimant in this case was dismissed by her employer, Liberata UK Limited, for poor attendance and failure to comply with absence procedures. The Claimant claimed that Liberata had failed to make reasonable adjustments for her disability.

The Employment Tribunal (“ET”) was satisfied that the Claimant had shown symptoms of a stress-related illness two months prior to her dismissal, that she was ‘disabled’, and that her disability affected her attendance.

However, the ET had to decide whether Liberata ought reasonably to have known this and acted accordingly.

Liberata had obtained an occupational health assessment which concluded that the Claimant was not disabled. The ET criticised the adequacy of the assessment, but concluded that there were a host of conflicting reasons for the Claimant’s absences which the Claimant attributed to various unrelated illnesses. It decided that Liberata could not have been expected to do more to find out the true nature of the Claimant’s health problems or that she was disabled.

The Claimant appealed. The Employment Appeal Tribunal (“EAT”) rejected the appeal. There was sufficient evidence, including ‘return to work’ meetings, discussions with the Claimant and communications with her GP which suggested that the Claimant was not disabled.

Employers should not blindly accept occupational health assessments but should consider the wider context and other evidence to hand before taking decisions on whether an employee may be disabled or not. If in doubt we would suggest taking a cautious approach and assuming disability.

Sparks and another v Department for Transport [2015] EWHC 181 (QB) and Norman and others v National Audit Office UKEAT/0276/14/BA – Can an employer make unilateral changes to terms and conditions of employment?

The general rule is that employment contracts can only be changed by agreement. However, employers will often seek to reserve the right to vary the terms of a contract unilaterally i.e. without the consent of their employees.

In Sparks and another v Department for Transport, the employer reserved the right to unilaterally change the terms of its staff handbook, which were, in part, contractual, where certain conditions had been met (i.e. following consultation and where the change was not detrimental to the employees). The employer wanted to reduce the number of days absence required before a formal absence procedure would commence.

The employer consulted with the employees about this change and the employees refused to agree to the variation. The High Court held that the employer could not then unilaterally make the change as it had not satisfied the second condition set out in the contract, which was that the change would not be detrimental to the employees. Clearly reducing the number of days absence before a formal procedure commenced would be detrimental to the employees and so the employees’ original contractual terms were reinstated.

In the second case, Norman and others v National Audit Office, the employer, the National Audit Office, included a much wider clause which said that contractual terms were ‘subject to amendment’. Whilst the ET initially decided that the employer was entitled to vary the contract unilaterally, on appeal the EAT overturned the decision and held that such general wording was nowhere near the necessary standard to permit unilateral changes.

Employers should be aware that any attempt to reserve the right to unilateral vary contracts of employment will be carefully scrutinised by the courts and should not be drafted in a wide and general manner. Otherwise, it is advisable to keep as much as possible in the non-contractual section of staff handbooks which enables those terms to be changed much more easily.

Changes to employment law in April 2015

Several key changes to employment law came into force in April:

• Increased rights for adoptors:
  • the requirement to have 26 weeks’ service to be eligible for adoption leave has been abolished;
     
  • single and joint adoptors now have the right to attend adoption appointments and are protected from suffering a detriment or being dismissed in relation to exercising this;
     
  • statutory adoption leave has been brought in line with statutory maternity leave; and
     
  • adoption rights have been extended to couples adopting from outside the UK, as well as couple fostering as part of a Fostering for Adoption placement.
     
• Shared parental leave

The new scheme applies to babies and children who are due to be born, or placed for adoption on or after 5 April 2015.

• Unpaid parental leave

The general upper age limit for children in respect of whom parents can take unpaid parental leave has increased from 5 to 18 (up to a child’s 18th birthday).