Employment Law E-Bulletin

Cases

Salary is not a reasonable adjustment

You may remember that, back in October 2006, we highlighted the Employment Appeal Tribunal’s decision in O’Hanlon v Commissioners for HM Revenue and Customs.  The EAT decided that employers are not obliged to give a disabled employee on disability-related sick leave full pay as part of the duty to make reasonable adjustments.  This case recently came before the Court of Appeal which has upheld the findings of the EAT.

The facts of the case are that, Mrs O’Hanlon had suffered from clinical depression since 1988 and, in 2001, started to take long periods of absence from work.  HM  Revenue and Customs had a sickness policy that, anyone absent on sick leave would receive full pay for 26 weeks in any 4 year period, then half pay for the next 20 weeks and, thereafter, the pension rate of pay. Mrs O’Hanlon claimed that her employer should pay her full pay for any disability related absence as a reasonable adjustment.

The Court of Appeal has now agreed with the EAT stating that the Disability Discrimination Act should not be applied in a way that encourages people to stay off work.  As a result, employers are not obliged to pay full salary to disabled employees on sickness absence as part of their duties to make reasonable adjustments.

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European Decision on Monitoring Emails

The recent decision in the case of Copland v UK should sound a warning bell for all employers who monitor the email and internet use of their staff.

Ms Copland started working for Carmarthenshire College (“the College”) in 1991. In 1995 Ms Copland became the personal assistant to the College Principal and later the Deputy Principal.

During her employment, the applicant's telephone, e-mail and internet usage were subjected to monitoring at the Deputy Principal’s request because he believed she was making excessive use of College facilities for personal purposes.

As the College did not have a policy in force regarding the monitoring of telephone, e-mail or internet use by employees, and the monitoring was undertaken without Ms Copland’s knowledge, the European Court of Human Rights has found that this was a breach of her right to privacy. The Court stressed that, even though the communications took place at work, Ms Copland “had a reasonable expectation as to the privacy of [the] calls” and that “the same expectation should apply in relation to the applicant's e-mail and internet usage.”

Given the ever growing role that email and the internet play in our daily lives, employers should take this opportunity to think about putting an Acceptable Use Policy in place but should, at the very least, check their contracts and handbooks to ensure that the right to monitor communications is expressly covered.

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Symbols of Faith

Many of you will recall the mass of newspaper coverage which surrounded the initial hearing of the high profile case of Azmi v Kirklees Metropolitan Borough Council.

Ms Azmi was employed as a bilingual support worker by the Council. She is a devout muslim and has worn a veil when in the presence of unrelated adult males since the age of 15.

Although Ms Azmi had not worn a veil at her job interview, she requested to do so during her first week in the post. The school where she was working refused on the basis that students needed to be able to see her face and expressions in order to learn language skills. The school also felt that her diction was not as clear when she was wearing the veil. On this basis, the school insisted that Ms Azmi remove her veil when working with children but she refused.

Ms Azmi argued that the school’s insistance on not wearing a veil amounted to direct discrimination under the Employment Equality (Religion or Belief) Regulations 2003. The Employment Tribunal disagreed and the EAT has now upheld this decision on the grounds that a non-Muslim woman who covered her face in the same way (for example, with a balaclava) would have been treated in the same way. The EAT also upheld the Tribunal’s finding that the ‘no veil policy’ was a proportionate way of achieving the school’s aim of raising standards in language teaching.

As the EAT refused Ms Azmi’s application to have the matter refered to the European Court of Justice, this should now be the end of the matter but the case does highlight, once again, the need to think carefully about justification should you wish to deny an employee the right to wear an item of dress which is a visible symbol of faith.

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Back to Employment Law E-Bulletin May 2007
Back to lead article on Part-Time Workers

For further information on part time workers or any other employment law issue, contact Burnetts' employment law solicitors on 01228 552222.

May 2007