17/12/2015
The last employment law news in brief of the year is reported by John Moore and covers: sickness absence and disability discrimination – a decision from the Court of Appeal; new guidance on avoiding personal data slip-ups, guidance on recruitment and retention of transgender staff, disability discrimination guidance and the latest news on junior doctors' industrial action.
Sickness absence procedures & reasonable adjustments
Last week, the Court of Appeal dismissed an appeal against the Employment Appeal Tribunal's decision in in Griffiths v the Department for Work & Pensions, which concerned the operation of a long-term sickness absence policy in relation to a disabled employee. The Court held that where an employee’s disability leads to a level of absence which a non-disabled employee is unlikely to have, the rules of an attendance management policy will put the disabled employee at a substantial disadvantage. This means the duty to make reasonable adjustments is engaged but the question is then whether it is reasonable for the employer to adjust the rules of the policy in the particular circumstances. Here, the Court of Appeal said that the employer should not have been expected to make the adjustments proposed by the employee, i.e. the employer did not need to entirely disregard absence resulting from the employee's disability and did not need to delay trigger points before a disabled employee faced disciplinary sanctions, because they were not reasonable. We will report on this case in more detail in the next edition of Employment Eye.
Avoiding that 'whoops' moment…
It is very easy to do and can be, at best, embarrassing; at worst, very damaging: accidentally sending sensitive information to the wrong person - such as in rushed off email or accidentally attached file. On a larger scale, where organisations are handling vast amounts data, the inadvertent disclosure of sensitive personal information can have a much more serious impact. After several high profile reports in the press of inadvertent disclosures of personal information, the Information Commissioner's Office (ICO) has issued a useful technical guidance note, setting out helpful tips on how to disclose information safely when removing personal data from information requests and datasets. The guidance can be accessed here and outlines some of the most common types of inappropriate disclosures that the ICO has seen recently. It is intended for organisations disclosing information which has been derived from personal data and requires anonymising or redacting. This includes organisations releasing data pursuant to subject access requests, freedom of information requests or proactively publishing data of their own accord. The guidance includes tips, practical examples and a checklist. If you require any assistance with dealing with sensitive personal information, whether in relation to requests for information or the collating of internal data, please contact Emma Godding or Joanna Smart.
New guidance on recruitment and retention of transgender staff
The Government Equalities Office has issued new guidance to help employers with the recruitment and retention of transgender employees, and to raise awareness of transgender issues. It aims to provide practical advice on how to ensure that the recruitment process does not present barriers for transgender people, through to confidentiality issues and providing the right support. It highlights the importance of training key staff on best practice, and having awareness of equality law and relevant diversity and equality policies. It also contains advice for managers and HR on the individual and strategic issues that arise in relation to employees who are planning transition, are transitioning or have transitioned. This can range from individual issues such as agreeing an action plan, use of facilities, and communication, to more strategic issues such as the culture and values of the organisation. The guidance also sets out the relevant provisions in the Equality Act 2010 and the Gender Recognition Act 2004 and provides useful additional sources of additional information and advice.
New Acas guidance – disability discrimination
In a third piece of new guidance published this month, Acas has published new disability discrimination guidance. It provides 'key points for the workplace' on how disability discrimination can occur, how to handle complaints and suggests considerations for employers and employees to take into account.
Junior doctors' contract dispute
As has been widely reported in the press, last month junior doctors voted in favour of strike action in protest over proposed contract changes, but the proposed action did not go ahead and the British Medical Association (BMA) has now agreed to return to negotiations over the new contract. NHS Employers has agreed to extend the timeframe for the BMA to commence any industrial action by four weeks to 13 January 2016 at 5.00pm, to allow for negotiations to progress. Within that timetable, the BMA has agreed to temporarily suspend its proposed strike action and the Department of Health has agreed to temporarily suspend implementation of a new contract without the union's agreement.