Advise Gillian as to Wolverine Enterprises Ltd’s legal obligations towards Alan Smith and its potential legal liability towards Sylvia Brown.

Using these requirements, is Alan disabled?

Is his impairment physical or mental? Yes his impairment is physical he suffers from multiple sclerosis.

Is the effect of his impairment long-term? Yes his illness is progressive and will last the rest of his life.

Is the adverse effect of the impairment on his ability to carry out his day-to-day activities substantial? Yes, tiring more than the normal person is substantial because his job involves operating machinery, for which you have to concentrate and be fully alert at all times.

Does the impairment affect his ability to carry his normal day-to-day activities? Yes a person’s job is very much a part of their normal day-to-day activities and his job is affected and will be more so in the future.

What, legally, should the company do for Alan as a disabled employee?

As required by section 6 of the act:

‘ The employer must make the necessary reasonable adjustments to accommodate the person’

This duty is at the heart of the legislation. It is a duty to take such steps as is reasonable in all the circumstances of the case to take, in order to prevent any arrangements made by the employer, or any physical feature of the premises occupied by the employer, placing the disabled person at a substantial disadvantage by comparison with non-disabled workers.

Examples of reasonable adjustments are given in section 6(3). Some of which are (relevant to Alan): -

• Making adjustments to premises (e.g. wheelchair ramps)
• Transferring someone who becomes disabled to an existing vacancy elsewhere in the organisation.
• Altering working hours (e.g. allowing flexitime or even part-time work)
• Assigning someone to a different (and more accessible or suitable).
• Acquiring or modifying equipment.

When does this duty arise?

• When the person becomes disabled and symptoms of their condition manifest themselves.
• Employers are not obliged under the Act to make their employment arrangements and premises ‘disability proof’. This would be impossible as disabilities vary so greatly in nature and degree.
• The duty is to individuals with disabilities, and the question of reasonable adjustment is to be related to that individual’s position.
• The duty arises only if the employer is made aware of the disability, so Alan and his trade union representative would have to make Gillian aware of his condition before any adjustments would have to be made. This is contained in section 6(6) of the Act.

How much should an employer spend on adjustments?

Section 6(4) lists factors to be considered in assessing reasonableness; -

• The efficacy of the adjustment
• Its practicability for the employer
• The cost to the employer
• How disruptive it would be

The Code of Practice suggests as one rule of thumb that it would be reasonable to expect an employer to spend at least as much as it would cost to recruit and train a replacement for the job.

An example of an employer’s failure to comply with the Act is demonstrated in a case whereby the employer refused the employee recovering from ME to work at home.

Gillian should in the meeting discuss making suitable adjustments to Alan’s working conditions and or working times, perhaps a fan in his work area to prevent him from having to work in hot conditions and more rest periods to help with the tiredness he currently suffers. If provisions were not made for Alan, a breach in the employer’s duties would have occurred and he could claim for disability discrimination, as he would have been treated less favourably than a non-disabled employee.

Even had Alan not been disabled, under the implied in law terms of the contract of employment, it is the employer’s duty to provide a suitable working environment; this would imply an environment where everyone is comfortable and satisfied. An example of a case where an employee was not satisfied  involved a secretary in a firm of solicitors who was a non-smoker and who worked in a smoky environment. Her work area was rearranged but she still experienced discomfort, she left, which was unfair dismissal as the employer was in breach of this implied term of the contract, the employer could have done more.

2. Sylvia Brown

Important and relevant facts of the case

• Began work 1st June 1994
• Dismissed for Gross misconduct, which includes fighting and any form of violence.
• Struck a fellow employee
• Explained herself and apologised
• Managing directors overall decision

Dismissal without notice is known as summary dismissal, although this case is not strictly summary dismissal as she was given pay in lieu of notice. Gross misconduct is a fundamental breach of discipline. 

The first question to be asked is ‘was Sylvia dismissed?’

Yes, her employment was terminated not by herself.

For what reasons?

Gross misconduct – striking a fellow employee.

Here we must look at the law of unfair dismissal, which deals with the conduct of the employer at the time of dismissal. Was he/she reasonable in his/her actions?

1. In determining whether the dismissal of an employee was fair or unfair, it shall be for the employer to show –

               

1. what was the reason for the dismissal, and
2. That it was a reason falling within subsection 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

 (2)          (a) related to the capability or qualifications of the employee for

                          performing work of the kind much he was employed by the          

                                 employer to do, or

2. related to the conduct of the employee
3. Was that the employee could not continue to work in the position which he held without contravention of a duty or restriction imposed by or under an enactment.

(4) Where the employer has fulfilled the requirements of subs. 1 the             determination of the question whether the dismissal was fair or unfair, having regard to the reasons shown by the employer, shall depend upon whether in the circumstances (including the size and administrative resources of the employers undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and that question shall be determined in accordance with equity and the substantial merits of the case.

So far it would appear that the employer has acted fairly as subs.1 has been fulfilled.

Something that must be taken into consideration is this: -

      “ In determining whether the dismissal is fair the employment tribunal cannot have regard to matters of which the employer was unaware of at the time of dismissal and which, therefore, could not have formed part of his reason for dismissing the employee”.

“ A case must be judged according to how it looked at the time of dismissal. The reasonableness of the employers decision to dismiss must be judged according to what the employer knew and ought to have known at the moment of making the decision”.

If the procedural failure affects the state of the employer’s knowledge, for example, where the employer has not properly investigated, or has not given the employee an opportunity to explain, then the dismissal will be unreasonable.

Here the employer has given the employee a chance to explain making procedural steps taken seem like they are the right ones, he also has a further reason as to why the employee must remain dismissed :

   “ If I allow you to get away with hitting a manager for no reason then we wont be able to maintain discipline. I’ll send you one month’s pay in lieu of notice”.

The employer has acted unfairly because the disciplinary procedure is this : -

ACAS CODE

INVESTIGATION

DISCIPLINARY HEARING.

The employee must :

1 be told of the case against them

2 have an opportunity to state their case.

There must be an absence of bias.

The decision (reached after adjournment)

The employer must take account of :

1. Employee’s disciplinary record
2. Employee’s general record, age, position, length of service.
3. If the disciplinary procedure indicates the likely penalty.
4. the penalty imposed in similar, past cases.
5. special circumstances (e.g. health or domestic problems)
6. The gravity of the offence.

In this case the employer seems to have been ignorant to the rather substantial domestic problems of the employee in question. Things like general record, length of service and all these types of things have also been overlooked.

She could claim for unfair dismissal. The employer claimed that by not re-instating her he was trying to maintain discipline, when he wasn’t following the correct procedure in the first instance by not properly considering the circumstances. There is potential legal liability.

Remedies would be re-instatement or a compensatory award.

 

       

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