Legal News
As I am sure most of you are aware, the Equality Bill received Royal Assent on 8th April and has now become The Equality Act 2010. It is intended to come into effect on a phased basis between October 2010 and 2013. The purpose of this new legislation is to encompass thirty years’ worth of discrimination legislation and case law, and to explain the law on discrimination. The Act will clarify what is expected of employers and employees and will extend some forms of discrimination beyond the workplace. For more information on how this will affect businesses going forward, many firms are running training events.
Another change that has taken effect this month is the replacement of sick notes with fit notes. Initially, General Practitioners gave sick notes stating that their patient was too ill to work. However, General Practitioners are now required to give fit notes that state which jobs they feel their patients can perform and what employers can do to help them return to work. It is hoped that this will reduce the numbers of employees currently signed off work, and in turn reduce the knock-on costs to the economy. In my view, many GPs will find it very difficult to give specific representations as to what role an employee could carry out within a business. They can determine what an employee cannot do in relation to the role they are employed to undertake; however, I believe they will lack knowledge and understanding to give a fully detailed verdict on other roles within the industry and the individual businesses.
Case Law
The decision on whether an employer is obliged to carry out a risk assessment when informed by an employee that they are pregnant has been dictated by case law. On the one hand, a failure to carry out a risk assessment could amount to sex discrimination (Hardman v Mallon). However, such an assessment need only be carried out where there is evidence that the work involves a potential risk to health and safety (Madarassy v Noruma). In the recent case of O’Neill v Buckinghamshire County Council 2010, the EAT confirmed that there is no general obligation to carry out a risk assessment on pregnant employees. However, it does accept that in order for a risk assessment to be obligatory the employee must have notified the employer in writing that they are pregnant; the work involved must be of a kind that could involve risk or harm to health and safety of expectant mother or baby; and the risk arises from either the processes or working conditions of physical biological chemicals agents in the workplace at the time specified in the directive. I am not surprised by the decision in this case. Whilst I would usually recommend a risk assessment to be undertaken, the necessity is very much on a case-by-case analysis.
In the case of Aberdeen City Council v McNeill 2010, a Scottish EAT reconfirmed that: where an employee is in breach of contract at the time s/he resigns, then s/he is in repudiatory breach of the contract and is not therefore entitled to claim constructive dismissal. This case involved an employee who was being investigated for misconduct. The employee resigned during the investigation, claiming the procedure was oppressive and breached the implied term of trust and confidence. However, during the investigation it came to light that the employee had referred to a junior female colleague as “big boobs” or “big tit” at meetings. Such behaviour was unacceptable from a senior member of staff. The EAT held that where an employee was in breach of implied terms at the date of resigning, then they could not successfully claim that the employer was in breach of an implied term. Whilst this was a Scottish decision, this reaffirms decisions that have been made in the English system, and in my view is fair and reasonable. As the maxim goes “he who comes into equity must come with clean hands.”
Nicky Cockerill
Nicky Cockerill is an Assistant Solicitor at the niche employment law firm PJH Law. You can read their blog here.
Case Law
The decision on whether an employer is obliged to carry out a risk assessment when informed by an employee that they are pregnant has been dictated by case law. On the one hand, a failure to carry out a risk assessment could amount to sex discrimination (Hardman v Mallon). However, such an assessment need only be carried out where there is evidence that the work involves a potential risk to health and safety (Madarassy v Noruma). In the recent case of O’Neill v Buckinghamshire County Council 2010, the EAT confirmed that there is no general obligation to carry out a risk assessment on pregnant employees. However, it does accept that in order for a risk assessment to be obligatory the employee must have notified the employer in writing that they are pregnant; the work involved must be of a kind that could involve risk or harm to health and safety of expectant mother or baby; and the risk arises from either the processes or working conditions of physical biological chemicals agents in the workplace at the time specified in the directive. I am not surprised by the decision in this case. Whilst I would usually recommend a risk assessment to be undertaken, the necessity is very much on a case-by-case analysis.
In the case of Aberdeen City Council v McNeill 2010, a Scottish EAT reconfirmed that: where an employee is in breach of contract at the time s/he resigns, then s/he is in repudiatory breach of the contract and is not therefore entitled to claim constructive dismissal. This case involved an employee who was being investigated for misconduct. The employee resigned during the investigation, claiming the procedure was oppressive and breached the implied term of trust and confidence. However, during the investigation it came to light that the employee had referred to a junior female colleague as “big boobs” or “big tit” at meetings. Such behaviour was unacceptable from a senior member of staff. The EAT held that where an employee was in breach of implied terms at the date of resigning, then they could not successfully claim that the employer was in breach of an implied term. Whilst this was a Scottish decision, this reaffirms decisions that have been made in the English system, and in my view is fair and reasonable. As the maxim goes “he who comes into equity must come with clean hands.”
Nicky Cockerill
Nicky Cockerill is an Assistant Solicitor at the niche employment law firm PJH Law. You can read their blog here.
Very interesting article. Would be interesting to know more about how an employer can claim a repudiatory breach of contract to preemptively nullify a constructive dismissal claim.
Posted by: James R Gibb | Thursday, 27 October 2011 at 01:18 PM