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More developments in Employment Law from our Ealing expert, Louise Taft

Dispute over the Working Time opt out

The European Commission has delivered an opinion that the ability to opt out of the maximum 48 hour working week should stay. Of course the European Parliament recently voted to end the opt out, which would mean that all workers would be subject to a maximum working week of 48 hours averaged over a period.

The UK government has been lobbying strongly to retain the opt out, which allows employees to agree to work more than 48 hours each week. The Commission now appears to be in favour, though they want to impose more safeguards, such as preventing employers asking their employees to opt out during their probationary period.

Disabled employee’s rights watered down?

The Employment Appeal Tribunal has confirmed that a decision of the House of Lords last summer regarding a disabled tenant established a principle that will be applied in Employment law.

It overturned the interpretation of the Disability Discrimination Act that had been applied for almost ten years, of who to compare a disabled employee with in considering whether they had been treated less favourably for a reason related to their disability.

Previously, Employment Tribunals compared a disabled employee with a non-disabled employee without the characteristic that was said to be the reason for the less favourable treatment. So a disabled employee who needed time off work to attend hospital appointments being treated less favourably because of this was compared with a non-disabled employee who didn’t need to take time off. If there was less favourable treatment, the Tribunal went on to consider whether that was justified.

The new interpretation means that Tribunals will compare like with like. So now the disabled employee would be compared with a non-disabled employee who needed regular time off. If they would be treated in the same way, there is no discrimination.

The practical effect of this is to make it almost impossible for employees to claim disability related discrimination. However, there is still the obligation to implement reasonable adjustments for disabled employees. In our example, changing working hours to accommodate hospital appointments might well be a reasonable adjustment.

Increases to compensation limits

These came in for Dismissals on or after 1 February. The greatest practical effect is the change to the maximum week’s pay for calculating redundancy payments and basic awards in Unfair Dismissal cases, which rises to £350. The cap on compensatory awards in Unfair Dismissal cases rises to £66,200.

 

 

February 26, 2009