Working Time Regulations - doctors in training

A quick reminder - the average weekly working time limits for doctors in training will be reduced to 48 hours from tomorrow, 1 August 2009...

Problems with... presenteeism?

Interesting article in The Times today... managing presenteeism. Is this a bigger problem than the £13.2 billion absenteeism costs British Industry every year? A penny for your thoughts...

Another Bank Holiday in the offing?

Despite the rain, the traffic and the overcrowded beaches, the UK loves its Bank Holidays - but against an EU average of 10.8 public holidays a year, the UK limps in last with only 8. Portugal and Spain enjoy between 12 and 14, and Austria has a whopping 13 every year. Now Work and Pensions Secretary Yvette Cooper has told the Daily Mirror that is to announce that Britain will officially recognise Workers' Memorial Day and will "consider" making it a bank holiday, commemorating people killed at work. A nation celebrates - General Election around the corner, perhaps?

Right to representation at internal disciplinary procedings

It has long been considered trite that, whilst an employee will be entitled to be accompanied by a colleague or a trade union representative at an internal disciplinary hearing, that right does not extend to legal representation. It now seems this is no longer quite the case.

You may recall a case earlier this year concerning a teacher successfully arguing, on Human Rights grounds, that he was entitled to legal representation at an internal disciplinary hearing because, had the allegations been upheld, his employer would have reported him to the Secretary of State on the basis that he was unfit to work with children. The High Court held in his favour because the gravity of the allegations meant that he was entitled to legal representation at the disciplinary hearing.

Now, hot on the heels of this case comes the Court of Appeal's decision in Kulkarni v Milton Keynes Hospital NHS Trust. This case now makes it clear that, where an NHS doctor or dentist in England is subject to a disciplinary hearing on misconduct or capability grounds, that person has the contractual right to a legal representative, instructed or retained by his medical defence organisation, at that hearing.

Of perhaps greater interest is a remark in the judgment which, whilst not forming part of the decision proper, suggests that Art 6 of the European Convention on Human Rights gives a free-standing right to legal representation at internal disciplinary hearings where the allegations are of such gravity a person might be unable to work in the future if they are proved. This would apply to all public sector workers, and is therefore of real significance.

Strictly Age Discrimination: the Arlene saga rumbles on

Selina Scott - who recently settled her age discrimination case against Channel 5 for an undisclosed five figure sum - has waded into the row over Arlene Phillips' unceremonious eviction from Strictly Come Dancing. Arlene (66) is being replaced by Alesha Dixon (30), presumably to contribute to an aim by Auntie Beeb to target younger viewers. It's worth remembering that Alesha is a former contestant of the programme, and is not a professional dancer or choreographer.

The Age Discrimination Regulations tell us that a person A will be discriminating against another person B if he treats B less favourably than he would treat a comparator "on grounds of B's age". The comparator will be another person whose relevant circumstances are the same, or not materially different, to those of B. Unlike other forms of discrimination, direct age discrimination can be justified, so long as the discriminatory treatment is "a proportionate means of achieving a legitimate aim".

So what's a "proportionate means of achieving a legitimate aim" when it's at home? Some examples of legitimate aims which might justify age discrimination have been given by the Department for Business Innovation and Skills (BIS). These include "facilitation of employment planning", "particular training requirements", "encouraging and rewarding loyalty" and "recruiting or retaining older people". An aim which it believed would not be legitimate would be where "a retailer of trendy fashion items wants to employ young shop assistants because it believes this will contribute to its aim of targeting young buyers".

It may just be us, but doesn't Selina have a point? Anyway, you can read what Selina had to say here...

I've got swine flu? Who do I sue?!

It was only a matter of time before someone had the lightbulb realisation that they might be able to sue their employer if they get swine flu. We can't help thinking that, on this occasion, this one's being pushed by a barely concealed need to fill column inches...

Full story here.

Fair access to professions

You will no doubt have seen Alan Milburn doing the media rounds this week, fielding questions on a new publication, "Unleashing Aspiration: The Final Report of the Panel on Fair Access to the Professions". The Report was commissioned by the Prime Minister, was compiled by an independent panel of experts, and weighs in at a hefty 167 pages. It examines barriers to professions, and - to cut a long story short - concludes that top professions contain a degree of elitism which is shutting out young people who originate from middle and lower income backgrounds. It also states that action needs to taken against this "closed shop" mentality, and that the Government should make social mobility its top social policy priority. Whether the Government will be able to act on it with a General Election less than a year away remains to be seen.

If you do fancy wading through the text of the report, you can download it here.

Web photos...

Since Michael Sissons joined us in February, we've been meaning to update the photographs to update our website - and have finally bitten the bullet! We decided to make use of the pretty idiosyncratic features of our offices - the sculpture we're in front of is, in fact, a giant portrait of Alfred Hitchcock. It sits on top of our meeting rooms and is easily the best indicator that you've actually arrived here!

The photographs will be posted to our website very soon - and we're always interested to know what people think.

Tribunals Service 2008-09 Report and Accounts

On 16 July 2009, the Tribunals Service published its 2008-09 report and accounts. They can be read here. Amongst other things, you can read about the Tribunals Service and Acas joint development of a new electronic case management system, Caseflow. Their aim is to bring "greater efficiency and flexibility" to the processing of employment tribunal claims. Caseflow is set to be piloted in late July 2009, with a plan to be rolled out to all employment tribunal offices by summer 2010 - we'll be keeping an eye out for it!

The official employment tribunal statistics for 2008 to 2009 will be published later this year.

Disability discrimination - failure to make reasonable adjustments

The EAT has held, in Fareham College v Walters, that a decision to dismiss can be an unlawful act of disability discrimination by reason of being a failure to make reasonable adjustments. It therefore mitigates the effect of Lewisham v Malcolm. The House of Lords' decision in the latter case, made in June last year, had made disability-related discrimination much more difficult for claimants to establish.

The EAT held that if, at the point at which the employer was considering dismissing the employee, there was a reasonable adjustment which would have avoided the dismissal - for example, allowing the employee to move to another position - the dismissal itself will be an unlawful act of disability discrimination by reason of the failure to make reasonable adjustments.

The full decision can be read here.

Effective date of termination

An interesting case from the Court of Appeal. In Gisda Cyf v Barratt, the Court agreed with an earlier decision of the EAT and held that the effective date of termination was when an employee actually read a letter informing her that she had been summarily dismissed. It was not the date on which the letter was written, posted or delivered.

You can read the full judgment here.