Employee Law and Relations - Essay Example

Employee law and relations Legislations have defined disability in several ways depending on the physical or mental defect of an employee or prospective employee. Therefore disability cannot be judged from the physical appearance or presence of a person. The Disability Discrimination Act identifies a person to be disabled if there is a mental or physical defect that constitutes an adverse or substantial effect in the long run and inhibits the person from performing daily activities in a normal manner. Normal daily activities may be defined as the daily routine of a person which includes travelling by general transport, writing, handling telephone, reading, and normal method of conversation. Long run means that the defect of a person has a lasting effect and it is expected to continue for a minimum of one year. The term substantial effect indicates that the disability is not minor or insignificant but constitutes a barrier to perform function in a normal manner. The significant part of the Act is to consider the effect of an impairment rather than the impairment itself. For example, an employer should consider the effects of back pain, migrain, asthma and dyslexia of an employee rather than considering the sickness. However, certain conditions like multiple sclerosis, cancer and HIV is directly considered as disabilities. The Disability Discrimination Act and its amendments requires employers to avoid harassment, victimisation and the three forms of discrimination at work place and ensure fair treatment for disabled individuals. The three forms of unlawful discrimination includes disability linked discrimination, direct discrimination and the failure to provide reasonable adjustment. The failure of the employer to provide reasonable adjustment is not justifiable if the failure was committed with knowledge of a person's disability. Employers can attempt to identify the disability of people and study its effects on the employee and extent resonable adjustment according to the requirement. The Disability Discrimination Act 1995 requires employers to provide necessary reasonable adjustments to ensure equal opportunities for disabled individuals to continue work and apply for work. Employers can practice reasonable adjustments for disabled employees depending on the disability and associated requirement. Some of the reasonable adjustments that can be made at workplace are changes to workplace layout and improving the accessibility for disable individuals, assigning a part of the disabled person's duties to a temporary employee, changes to work hours - flexible working hours, starting late or ending earlier, job sharing, etc, additional leave for rehabilitation, treatment or assessment, special training for disabled individuals and their subordinates, provision of adaptable equipment and furnitures like desk, chair, vehicles and computer, modification of instructions in Braille or larger font and assisting communication for the visual as well as hearing disabled by appointing a reader. Changes to work arrangement can also result in alternative work or work profile which can be adopted as a reasonable adjustment of last resort. A disabled individual seeking reasonable adjustment should reveal the condition to the employer with adequate data that proves the disability. They have a right to confidentiality and the employer is required to hold the information confidentially unless there is explicit permission from the employee to disclose the details to a third party. This is supported by the Data Protection Act 1998 (What counts as a disability in law' 2008). Though Disability Discrimination Act has laid rules to be followed by the employer in providing reasonable adjustment, there are limitations to this additional service. Reasonable adjustment is not mandatory if it cause unjustifiable hardship to the employer. Further, the employer can avail funds for reasonable adjustment from the Workplace Modification scheme to restructure workplace setting or equipment and to adapt to the requirement of disabled individuals (What is reasonable adjustment' 2008). The Disability Discrimination Act was amended in July 2003 and was set to be implemented from 1st October 2004. The amendments include the definition and explanation of various terms and situations where an individual may be considered disabled and is eligible for reasonable adjustment. Section 3A defines that discrimination prevails at workplace if the disabled person is treated less favourably based on the circumstances and the treatment at work place cannot be justified. A disabled person is also discriminated by another person if the required reasonable adjustments are not provided for which the disabled person is eligible. Discrimination is justified under sub section (1) (b), if the reason is substantial to the circumstance of that specific case. However, an act of discrimination on disable individual cannot be justified as per subsection (3) if it is a case of direct discrimination as mentioned in subsection (5). Direct discrimination occurs when a person discriminates a disabled person and treats the individual less favorably than the person would treat an individual having no disability where the capability of the individual is the same as or different from those of the disabled person. The amendment of Disability Discrimination Act 1995 also holds an employer person liable if the required reasonable adjustment is not provided for the disabled person and cannot be justified as per subsection (3) and can be justified only if the necessary adjustments were made at workplace. Section 3B, sub section (1) defines the meaning of harassment on a disabled individual. A case of harassment on disabled person arises based on the disabled individual's disability and involvement of another person in unwanted conduct that may result in the violation of the disabled individuals dignity (paragraph a) or gives rise to a situation of intimidation, degradation, humiliation, offensive situation or hostility (paragraph b). The conduct should have an effect on the disabled person as mentioned in subsection (1), paragraph (a) or (b) to constitute harassment. Section 4 -The definition of Employment, office holders and contract workers has in Sections 4 to 6 of the DDA 1995 has been substituted by the following definitions: Subsection (1). The amended act indicates that it is unlawful from the side of the employer to discriminate a disabled individual when it comes to the selection of employees for employment, the terms of employment or the refusal to employ a person deliberately due to the person's disability. Subsection (2). The act also indicates that it is unlawful for an establishment to discriminate a disabled individual on the terms of employment, opportunities provided by the establishment which relates to transfer, promotion, training and other benefits, refusal to offer such opportunities or dismissal of disabled person from employment due to the disability. Employers will also be found guilty if a disabled person is subject to harassment in the case of an existing employee or a new applicant. Section 4, subsection (2) is not applicable to benefits of the explanation if the terms of employment includes provision to the extent of termination of contract on the expiry of a term or if the employer has explicitly mentioned the terms of benefits for all employees or the contract is regulated by the terms of the establishment. This is also not applicable if the employment of a person is terminated on the grounds of misconduct. Section 4A requires employers to make reasonable adjustments subject to the practices, provisions, infrastructure or circumstance of the employer'if it leads the disabled person to be in a state of significant disadvantage when compared to individuals who are not disabled (1). The sections envisages it as the duty of the employer to make necessary changes in the above mentioned circumstances to avoid a situation that gives rise to hindrances to the disabled when the person has informed the employer of the disability at the time of application or during the course of employment. Subsection (3) of this section however does not impose duty on the employer if the disability is not informed by the disabled individual and the employer is not expected to know at the time of application or is affected by the circumstances as mentioned in subsection (1) of this section. 4B Contract workers - Contract workers are also protected under the amended Disability Discrimination Act where an unlawful action is carried out by the principal on a contract worker on the basis of the individual's disability. Employer's unlawful action can include terms of agreement, disallowing the disabled individual to work or continue in employment, or the refusal to pay benefits or willful omission to include such benefits and subjects the disabled individual to any other non-accessible factors. The amended Act also holds the employer guilty if a disabled contract worker is harassed at work place. Subsection (1) of this section is not applicable if the contract worker is not eligible for such benefits for which other workers or public or section of the public is eligible. The subsection holds good for contract workers if the criterion, provision or practice is applicable on behalf of the employer and the working environment of such people since the person will be at comparatively significant disadvantage to the colleagues who do not have disability. In these circumstances, the employer should takes steps for reasonable adjustment as mentioned in section 4A in case the criterion, provision or practice is used on the employer's behalf or if the premises are used by the employer. Section 4A is applicable to the employer while employing a contract worker in the above circumstances (Amendments to the 1995 Act 2003). Trade Unions also support disability equality and empower employees through its political strength to gain the rights of disabled individuals. In certain organizations, trade unions have committees to monitor and assist their work. Disabled individuals can have equal status with other non disabled members in the trade union and hold positions in the union. Disability discrimination is not tolerated in trade unions also. Further, disability policies of the employer are regularly evaluated by the trade unions to take necessary action (Trade Union Charter for Disability Equality (n.d)). The legislation of the Disability Discrimination Act has given rise to several case laws. Disability discrimination is likely to take place in three forms. They are victimization, less favourable treatment and the failure to provide reasonable adjustment. The most significant of the rights under the Act is the duty of the organization to provide reasonable adjustment to an individual with disability if the person is appointed in a significant disadvantage position when compared to other non-disabled employees. A review of Mid Staffordshire General Hospitals NHS Trust v Cambridge indicates that the case has resulted in a significant conclusion of the EAT that widely defines reasonable adjustment and the less favourable treatment rights according to the Disability Discrimination Act. In this case, Mrs. Cambridge has received the support of the trade union called UNISON. Mrs. Cambridge was supposed to avail sick leave for a period of five months. During the course of her treatment, Mrs. Cambridge was certified fit to perform two hours duty a day. On completion of four months leave, her occupational health doctor certified her to increase the number of hours work per day and advised her that it would take another twelve months for complete recovery. At this juncture, Mrs. Cambridge's manager notified that she is obliged to perform full time work in a short time least she would be terminated from her services. This was followed by a disciplinary procedure and finally Mrs. Cambridge was dismissed. The employer did consider the requirement of the Disability Discrimination Act though several meetings were conducted with Mrs.Cambridge. Mrs. Cambridge was eligible for full page for another six weeks period and half pay for six months when it was decided to dismiss her. However, when Mrs.Cambridge was actually dismissed, the eligibility to payments was outdated. The Employment Appeal Tribunal (EAT) identified that Mrs.Cambridge has received less favourable treatment from her employers and there was a failure from the employer to provide reasonable adjustment with regard to the hours of duty. Less favourable treatment was with respect to probable redeployment before the completion of the advised reasonable adjustment, direct and indirect warning from the employer for disciplinary action during the several meetings before the final decision and substantiation of disciplinary action during the course of reasonable adjustment. The judgement from the EAT held the employer liable for violating Section 6(1) which indicates the failure of the employer to assess the condition of the employee before deciding the disciplinary action to adjudge the extent of Mrs.Cambridge's disadvantage so that necessary reasonable adjustment could have been made to the physical requirements and work arrangements. Methods to remove the dispute The correct approach of the employer could have been to follow Section 6 (1). The failure to follow the rule results in compensation by the employer for breach of the legislation. The Tribunal also emphasized the significance of the assessment since loss of job can be avoided and unsubstantial less favourable treatment can be ascertained before the dismissal of an employee (Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 567). Disability Discrimination Act and similar laws in Europe protects woman from sex discrimination at workplace. A judgement by the European Court of Justice with respect to a German case may be reviewed to study the scope of reasonable adjustment and Equal Treatment Directive. Ms.Busch gave birth to a child in June 2000 and availed parental leave for three years. Ms. Busch became pregnant in October 2000. She informed her employer that she would resume work and wanted to cancel her parental leave. Ms.Busch requested the cancellation of parental leave because maternity leave is highly paid than parental leave. Ms.Busch resumed work on April 9, 2001 and informed about her seven month pregnancy to the employers. The employers however held her for fraudulent misrepresentations and started proceedings to disallow her from performing duty on the basis of her work as a nurse at the Respondent clinic that requires performing lifting and carrying jobs that are not advisable during pregnancy. Ms. Busch initiated proceedings for her maternity allowance arguing that it is not necessary to declare her pregnancy and that she would be able to perform her work until the beginning of maternity leave. The European Court of Justice declared that it is against the Article 2 (1) as specified in the Equal Treatment Directive to demand an employee to inform the employer about the joining of duty prior to the end of parental leave and to communicate to the employer of her pregnancy which will hinder her from performing her work, even if the employee plans to return to work to obtain maternity allowance which is higher than the amount paid during parental leave. The Court held that it is a case of direct discrimination since the employer refuses to permit the employee to resume work prior to the completion of parental leave not considering the employee's pregnancy. The European Court of Justice concluded that this is a case of sex discrimination by demanding the woman to provide notice to the employer of the woman's pregnancy as in the case of Ms.Busch. The case provides a wide scope for the application of pregnant woman's protection as per European law (Busch v Klinkum Neustadt GmbH & Co Betriebs-kg [2003] IRLR 625). Employers are not required to provide reasonable adjustments for all sick employees in the organization. The law applies only for those individuals whose disability falls under the definition of disability as mentioned in the Disability Discrimination Act. The legislation on disability creates several challenges to the employers. The dismissal of a disabled individual due to the disability is unfair and cannot be justified or defended by the employer. The Employment Relations Act 1999 is the amended version of Employment Rights Act 1996 that extents employee with the right to avail reasonable duration of time away from work to undergo emergencies or unexpected sickness. The Act allows long leave from work for various situations related to illness of the individual or the individual's relative. The right to avail leave is also mentioned in Maternity and Parental Leave Regulations 1999. The duration of leave depends on the situation. But these rights are subject to abuse by employees or employers who act in poor faith. An employee has the right to take the employer to the employment tribunal if the employer does not act according to the rules in the regulation. (Gennard, J. & Judge, G. 2002 p.364-365). The Disability Discrimination Act is constituted in the greater interest of disabled people and holds the employer liable for failure to make reasonable adjustments. The Act is also favourable to the employer wherein it has made provisions to protect the employer from fraudulent misrepresentations and faulty indications of disability. The above mentioned case laws explain the significance of the Act that protects the disabled persons at workplace. Reference Amendments to the 1995 Act. July 9 2003. Available: http://www.opsi.gov.uk/si/si2003/20031673.htm#3. Accessed on November 19, 2008. Busch v Klinkum Neustadt GmbH & Co Betriebs-kg [2003] IRLR 625. 2003. Available: http://www.thompsons.law.co.uk/ltext/l1250002.htm#o2. Accessed on November 19, 2008. Gennard, J. & Judge, G. 2002 Employee Relations London: CIPD Publishing Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 567. 2003. Available: http://www.thompsons.law.co.uk/ltext/l1250003.htm. Accessed on November 19, 2008. Trade Union Charter for Disability Equality (n.d) Available: http://www.tuda.org.uk/charter.htm. Accessed on November 19, 2008. What counts as a disability in law' 2008. Available: http://www.hse.gov.uk/disability/law.htm. Accessed on November 19, 2008. What is reasonable adjustment' 2008. Available: http://www.jobaccess.gov.au/JOAC/Jobseekers/Getting_work/What_should_you_consider_before_looking_for_work/What_is_reasonable_adjustment/. Accessed on November 19, 2008. Read More