Case Law Round Up - Employment Law News Spring 2005

01 April 2005

To bring you up to date, here is a brief overview of some recent, key cases.

Unfair dismissal damages

The House of Lords (HL) decision in Dunnachie v Kingston-upon-Hull City Council is welcome news for employers. By overturning the Court of Appeal’s (CA) earlier decision, an unfairly dismissed employee can no longer succeed in claims for non-economic losses, such as injury to feelings arising from the manner of their dismissal. Damages for unfair dismissal will again be confined to financial losses flowing from the dismissal, for example loss of earnings and future losses.

Age discrimination (upper age limit for unfair dismissal/redundancy)

In recent years there have been a number of legal cases brought that challenge the lawfulness of age based discrimination. The most recent of these is the CA decision in Rutherford and another v Secretary of State for Trade and Industry. The decision, grounded in sex discrimination law, suggests that it is not currently unlawful to discriminate on the grounds of age. However, the reprieve is only temporary with new laws tackling age-based discrimination being implemented on 1 October 2006 (see Autumn 2003 newsletter). When implemented, upper age limits for unfair dismissal and redundancy may be disapplied.

Disability discrimination

Two recent cases emphasise an employer’s obligations when dealing with its duty to consider reasonable adjustments for disabled employees.

The case of Archibald v Fife Council concerned a disabled employee who, following surgery, was no longer able to perform her job function. The HL decided that a reasonable adjustment would have been to appoint the disabled employee to an existing sedentary vacancy at a higher grade, without the need for a competitive interview process. The decision suggests that an employer, when making reasonable adjustments, may be required to treat disabled employees more favourably than non disabled counterparts, consequently amounting to positive discrimination.

The CA decision in Nottinghamshire County Council v Meikle decided that the duty to make reasonable adjustments includes a duty to consider paying employees during periods of sickness related absences (even if they are contractually entitled to reduced pay or SSP). This is particularly relevant when an employer has previously failed to make reasonable adjustments to working arrangements, therefore potentially extending the period of sickness related absence.

For more information please contact Andrew Masters, Partner & Head of Employment.
 

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