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News Update

December 2016

An ET finds the dismissal of a visually impaired employee was in consequence of his disability and while there was a legitimate aim, dismissal was not justified, as less discriminatory means were not considered.

Acas publish guidance on the cost of social exclusion to employers and how to create an inclusive workplace, after CIPD research suggests that almost two thirds of employees feel that bullying is socially-driven.

The Department of Work and Pensions has published the Proposed benefit and pension rates for 2017 to 2018, which sets out the increases to maternity, paternity and parental leave payments, and SSP.

The Workingmums Annual Survey 2016 provides very useful demographic information on employment rate, type of job, pay and childcare which will assist employers in recruitment and retention.

The ICO has fined an employer after a laptop containing sensitive personal data was stolen whilst a member of staff was working away from the office, highlighting the need for adequate procedures to be in place.

Dismissal of visually impaired employee not justified as retention options not considered

In Sohrabi-Karyani v Brighton and Hove Bus and Coach Company Ltd, Sohrabi-Karyani (SK) was assaulted while driving his bus. He was punched in the face, resulting in double/blurred vision in his right eye. This meant he could no longer drive a bus, as his PSV license was suspended, nor could he drive a car. After 6 months’ absence, SK was unable to return to work as he was still undergoing investigations for his eye and still unable to drive. SK was subsequently called to a capability meeting and dismissed.

SK appealed. During the process a vacancy for a night cleaner arose. A medical report confirmed SK was fit for the position, but highlighted some risks, and suggested that a risk assessment be conducted with SK. A manager conducted the assessment, but did not involve SK or discuss the findings with him. The employer nevertheless decided it could not place SK in the night cleaner position because of the risks of vehicles moving around at night, dim lighting in some areas and safety goggles might hamper SK’s vision. SK’s dismissal was confirmed.

An ET upheld SK’s claim of disability arising in consequence of his disability, under S.15 of the Equality Act 2010. The ET found that SK’s long-term visual impairment meant that he was a disabled person. SK’s dismissal was because he could no longer drive a bus due to his visual impairment. This amounted to unfavourable treatment because of something arising in consequence of SK’s disability. Turning to justification, the ET decided that while the employer had a legitimate aim of ensuring a safe place of work, its treatment of SK was not a proportionate means of achieving that aim. This was because:

  • SK had not been involved in the risk assessment, nor were his views sought.
  • Given the risks identified, a proportionate response would have been to consider other options to achieve a less discriminatory way of achieving the legitimate aim, e.g. providing a ‘buddy’ for a limited period, doing the work during the day by swapping shifts on a temporary basis or ask SK to undergo a trial period.

Acas publish guidance on dealing with social exclusion in the workplace

Acas have published guidance on the cost of social exclusion to employers and how to create an inclusive workplace after CIPD research suggests that almost two thirds of employees feel that bullying is socially-driven. Acas highlight that Social bullying at work is on the rise. A poll by the CIPD suggests that almost two thirds of employees feel that bullying is socially-driven and over 91% believe that their organisation is failing to deal with the consequences. The proven impact of exclusion on people, productivity and business performance makes this an issue no business can afford to ignore. The guidance sets out the cost of social exclusion to employers, describes the impact on employees, advises on how to bring colleagues out of the cold and sets out the steps employers can take to create an inclusive workplace culture which should be included in their diversity policy.

DWP announce proposed statutory family friendly leave payments for 2017 to 2018

The Department of Work and Pensions has published the Proposed benefit and pension rates 2017 to 2018 which sets out the increases to maternity, paternity and parental leave payments and SSP. They are as follows:

  • For Statutory Adoption Pay, Statutory Maternity Pay, Statutory Paternity Pay and Statutory Shared Parental Pay, the weekly earnings threshold will increase from £112.00 113.00 and the Standard Rate will rise from £139.58 to £140.98.
  • The Statutory Sick Pay weekly earnings threshold will increase from £112.00 to £113.00 and the Standard Rate will rise from £88.45 to £89.35.

Survey provides key demographic information on working mums

The Workingmums Annual Survey 2016 provides very useful demographic information on employment rate, type of job, pay and childcare which will assist HR specialists in particular in reviewing their recruitment practices and retaining the services of employees going on maternity leave. The survey of 2,254 people provided some key pieces of information such as:

  • 46% use grandparents to reduce childcare costs, 39% pay nothing for childcare, 10% pay up to £100 per month, 13% between £100 - £250 per month, 15% between £250 - £500 per month and 23% pay over £500 per month.
  • The most common individual earning bracket is between £0k and £20k per year in their last job (49%) with 23% earning between £20k and £30k per year and 28% earned above £30k per year.
  • 41% of those working returned to the same job they were in before maternity leave, whilst 59% returned to a new job after their last period off work.
  • 62% of those working had 12 months or less of work before returning. 26% took between 1-6 months off, and 36% took 7-12 months off; 21% had more than 2 years away from working.
  • Most respondents got the flexible working they requested, but 26% did not with 12% feeling their employer did not even consider their request at all.

ICO fines employer after laptop containing personal data stolen while employee working away from office

The ICO has fined a historical society after a laptop containing sensitive personal data was stolen whilst a member of staff was working away from the office. The laptop, which wasn’t encrypted, contained the details of people who had donated artefacts to the society. An ICO investigation found the organisation had no policies or procedures around homeworking, encryption and mobile devices which resulted in a breach of data protection law. The ICO confirmed that organisations are required by law to keep data secure and that includes when working away from the office. The fine of £500 was based on the society’s financial circumstances but because of the serious nature of the breach, the ICO highlight that most organisations would expect to receive a much larger fine and should prompt all organisations to check they have adequate procedures in place.

 Content 

The aim of this update is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided, contact us for further details. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.


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