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One grievance letter can cover continuing act of discrimination

An employee may not bring a complaint in an Employment Tribunal for discrimination unless he or she has first raised a written grievance with the employer. The Employment Appeal Tribunal (EAT) has now confirmed that a single grievance letter is sufficient to cover a continuing failure to make reasonable adjustments under the Disability Discrimination Act 1995.

In Smith v Network Rail Infrastructure Ltd, the employee's complaint, that the employer had not been assisting him to find employment, was considered to amount to a continuing complaint. No further grievance was necessary for the tribunal to consider acts after the date of the original grievance letter, as the complaint to the employer was essentially the same as the complaint advanced before the tribunal.

The EAT also confirmed that the tribunal had erred in two further parts of its judgment. First, the duty to make reasonable adjustments arose at a much earlier stage than the date found by the tribunal. The EAT cited the House of Lords' decision in Archibald v Fife Council that 'the duty to make adjustments was triggered where an employee became so disabled that in that case she can no longer meet the requirements of her job description'. Secondly, the EAT concluded that the tribunal had been wrong to exclude any consideration of whether some form of appropriate IT training could have been a reasonable adjustment until a potential job had been identified.

This is a significant decision. It emphasises that where an employee may have a complaint about an ongoing discriminatory event, it will be sufficient for the employee to raise the issue only once in a grievance letter. The employee will not be restricted to complaining about the employer's actions prior to the date of the letter where the complaint is a continuing one and the subject matter is essentially the same. However, it is important to remember that a claimant cannot raise a grievance about one specific incident of discrimination and then in his claim form seek to rely on other specific incidents. Similarly, an employee cannot raise a grievance, for example, on the grounds of sex discrimination and then in the claim form seek to rely on grounds of race discrimination, unless he has issued a further grievance letter.

In addition, employers should not wait until an employee has been certified fit to return to work before starting to consider alternative positions, and should not assume that there is no need to offer training until a specific job has been identified. In such circumstances, therefore, employers should consider possible vacancies and adjustments, such as training, as soon as it becomes clear that an employee will be unable to return to his previous role. The question of what are reasonable adjustments will, however, remain fact-sensitive and all matters must be taken into account.

Does a failure to obtain a medical report amount to a failure to make a reasonable adjustment?

Whether an employer's failure to obtain and consult on an up-to-date medical report constitutes a failure to make a reasonable adjustment under the Disability Discrimination Act 1995 (DDA) has been considered by the EAT recently, highlighting the inconsistent decisions in this area.

In Spence v Intype Libra Ltd, an IT manager became disabled and claimed that his employer had failed to make a reasonable adjustment by not obtaining and consulting on a medical report before dismissing him. He argued that the earlier case of Tarbuck v Sainsbury's Supermarkets Ltd had been wrongly decided: Tarbuck confirmed that a failure to consult with an employee about the effects of her disability did not of itself amount to a failure to make a reasonable adjustment. Whilst the employee's argument in this case was unsuccessful, the EAT did grant leave to appeal to the Court of Appeal, in view of the conflicting decisions on the point.

It has also been reported that the Disability Rights Commission will be seeking to intervene in the appeal to the Court of Appeal, as it believes that both this case and Tarbuck have been wrongly decided.

Returning from maternity leave - what does the 'same job' mean?

Women who return from maternity leave are normally entitled to return to 'the job in which she was employed before her absence'. For the first time, the EAT has considered what this phrase means.

In Blundell v St Andrew's Catholic Primary School and anor, the employee was a teacher at a primary school. When she started her maternity leave, she was teaching the reception class. On her return, she was allocated to teach year two instead. She complained that she was entitled by law to return to the same job she had prior to the commencement of her maternity leave.

The EAT, confirming the decision of the tribunal, decided that teaching year two did amount to the same job. Under the Maternity and Parental Leave (etc) Regulations 1999, 'job' means the 'nature of the work which she is employed to do in accordance with the contract and the capacity and place in which she is so employed'. The three main factors considered by the EAT were therefore 'nature', 'capacity' and 'place'. The level of specificity to be given to 'nature' is determined in accordance with the employee's contract. The remaining two factors are not, and require the tribunal to assess them as a question of fact on a case-by-case basis. The employee in this case could be required to teach any class as asked by her headteacher, and this derived from the contract alone. The nature of her work was as a teacher, her capacity was as a class teacher, rather than a teacher of reception class, and the place of her work was the school. The job she returned to was therefore held to be within the normal range of variability which she could have reasonably expected.

Additional paternity leave and pay consultation

The consultation paper on the additional paternity leave proposals was launched this week, designed to provide working parents with more choice in their caring responsibilities.

The proposals aim to enable employed fathers to take up to 26 weeks' additional paternity leave, some of which can be paid if the mother of the child has returned to work. This new provision will be available during the second six months of the child's life, providing parents with the option of dividing a period of paid leave entitlement between them.

The Government has stated that its intention is to keep the additional paternity leave and pay scheme as straightforward as possible for employers and employees, to enable both to prepare for the introduction of the scheme. The earliest date that additional paternity leave and pay will be implemented will be for babies due on or after 5 April 2009, although this is not a firm date for introduction.

The administration of the scheme will require fathers to notify their employers of their intention to take additional paternity leave and pay and for mothers to notify their employers when they intend to return to work. The intention is that the father and the mother should self certify to the father's employer that the father is eligible for additional paternity leave and pay. The scheme will also be available to partners and civil partners of mothers, and members of adoption couples where there is an entitlement to statutory adoption leave and pay.

The consultation paper sets out how the process would work in practice, identifying what is required of the father, the mother and the father's employer. Consultation closes on 3 August 2007.

Can you spot a liar?

A third of British workers have admitted to lying on their CV, according to the results of a survey conducted by the video recruitment website www.jobs2view.com.

The most common lies on CVs were said to be about qualifications and grades - both of which could be easily verified by requiring copies of examination certificates. Five per cent of those who responded to the survey also admitted to lying about attending university, and more than one in five people have given false references (by asking a friend or relative to pose as a referee).

Verifying the accuracy of the information provided by job applications is central to the recruitment process. Failing to spot the lies on CVs can lead to recruiting candidates who may not have the pre-requisite skills or qualifications required for the position.

Commitment to corporate social responsibility - impacts employees' views

'Corporate social responsibility' has been a buzzword for many employers recently. However, according to recent research, the degree of commitment to corporate social responsibility can have a significant impact on how employees view their employers.

A survey of 1.6 million employees conducted by Sirota Survey Intelligence, an attitude research firm, found that 70 per cent of employees are positive about their employers' commitment to corporate social responsibility. According to Sirota, this influenced the views held by employees of their employers: 67 percent felt senior management had a strong sense of direction, 71 per cent said that senior management had high integrity and 75 per cent felt their employers were interested in their wellbeing.

Working 9 to 5 - thing of the past?

One in three employees works outside 'traditional' working hours, according to recent research undertaken by First Direct.

The survey revealed that staff working between 5pm and 9am (for example, shift workers, those who work flexible hours or those who work later into the evening) add £180 billion to the economy. First Direct believes this amount of money will more than double by 2027 to £450 billion, while the proportion of the workforce in non-traditional hours will grow to 35 per cent.

New ACAS guidance

ACAS has issued new guidance in the following areas: