Ridley v Severn NHS Trust (unreported 21/1/98)
Although an employer may act reasonably in accordance with the Employment Rights Act in dismissing an employee, the Disability Discrimination Act imposes much stricter duties on employers. The tribunal drew a distinction between the more stringent duties imposed on the employer by the Disability Discrimination Act compared to the broader concept of reasonableness under Section 98 (4) of the Employment Rights Act.
The case is an important reminder of the operation of the Disability Discrimination Act and how it can be used to good effect to protect the interests of employees.
Mrs Ridley worked as a Health Visitor for Severn NHS Trust from 1974 until March 1995 when she injured her leg and was unable to return to work as a Health Visitor. She was absent from work from July 1995 until the Trust initiated discussions about her continued employment.
Mrs Ridley understood her only option was ill health retirement but an application for an ill health pension was unsuccessful. She contacted her MSF Representative who then endeavoured to get her redeployed with pay protection. Due to her long service Mrs Ridley would receive an extra five years pensionable service if she remained in post at full pay until age 60.
The Trust placed her on the Redeployment List, carried out a skills assessment and circulated her CV. Mrs Ridley asked them to consider using her extensive experience as a Health Visitor allowing her to undertake project work or other support services for Health Visitors but this was rejected.
Her employment situation was reviewed in October 1996 and she was given notice that her contract would terminate on 23 January 1997. She appealed against dismissal. The appeal was heard on 6 January 1997 and was unsuccessful. She was 58 years old at the time.
During her notice period the employment provisions of the Disability Discrimination Act came into effect and part of her appeal was that the Trust had failed to comply with the Act. Mrs Ridley felt the Trust had not tried hard enough to redeploy her and during her notice period heard on the grapevine of a job as a Receptionist at the Health Centre where she had previously worked.
She asked if she could be considered for this job prior to her appeal against dismissal but the Trust went ahead although they indicated that if she applied for the post she would be interviewed without competition. The Trust's Occupational Health department agreed that she was fit to do the post.
Mrs Ridley was rejected for somewhat vague reasons and brought a claim for unfair dismissal and disability discrimination. The Tribunal found that Mrs Ridley had been fairly dismissed.
The tribunal did, however, accept that the Trust had not taken any further action during the notice periods. It was critical of the fact that the Trust put the onus on Mrs Ridley to apply for suitable jobs from the Vacancy Bulletin instead of the large Personnel Department actively suggesting alternatives.
However they found this in itself was not sufficient to make the dismissal unfair on the grounds of capability as they had made sufficient enquiries into Mrs Ridley's wishes and medical condition. The Tribunal also considered that the length of time Mrs Ridley had been off sick -16 months - was also important.
The Trust were found to have discriminated against Mrs Ridley for a reason related to her disability as they failed to comply with a Section 6 duty to make reasonable adjustments when she was rejected for the Receptionist post. The Tribunal found that the reasons for refusing Mrs Ridley the Receptionist post were not substantial and may have been remedied by training or some other adjustment and therefore they failed in their Section 6 duty.
The tribunal rejected the argument that the two Redeployment Policies operated by the Respondents offering pay protection on redundancy redeployment but not on sickness redeployment were also discriminatory for reasons related to disability.
Signing up to the Social Chapter
EC Council Directives 97/74/EC and 97/75/EC
Labour entered government committed to "signing up" to the Social Chapter. This involves participation in discussions on new Directives, such as the burden of proof in discrimination cases and the Part time Workers agreement. It also involves adopting Directives which previously did not extent to the UK.
The two Directives in this category are the European Works Councils Directive (94/45/EC) and the Parental Leave Directive (96/24/EC). The European Union has now adopted two Directives which extend the Works Councils and Parental Leave Directive to the United Kingdom.
These two Directives were adopted on 15 December 1997. They must be implemented in the UK by 15 December 1999.
The extension of the Parental Leave Agreement to the UK is straightforward. There are no modifications necessary to the agreement: merely the provision confirming that it now extends to the UK.
The position regarding the Works Council Directive is slightly more complicated.
The extension of the Directive to the UK means that employees based in the UK will now be counted when determining whether groups of companies meet the threshold requirements of the Directive. The Directive applies to groups of undertakings with at least 1,000 employees within the Member States, at least two group undertakings of different Member States and at least two group undertakings with at least 150 employees in two Member States.
Under the original directive, groups of companies could satisfy the requirements of the Directive by reaching agreements, covering their entire workforce, providing for transnational information and consultation of employees. This only applied to agreements concluded before 22 September 1996.
There is now a new deadline for groups of companies which are now covered by the Directive only because of the extension to the United Kingdom. These groups of companies have until 15 December 1999 to reach agreements with employee representatives covering the entire workforce, providing for transnational information and consultation of employees.
Many UK based groups of companies have already entered appropriate agreements covering the whole of the European workforce, including the United Kingdom. The extension of the full provisions of the Directive to the UK and this further deadline is likely to mean that discussions will now take place between those groups of companies not previously covered who will see the advantages of reaching a voluntary agreement rather than strict compliance with the Directive.
The other technical change introduced by the new Directive is to increase the number of members of the special negotiating body to a maximum of 18, to allow for the fact that the UK is included.
The Directive reiterates that it may be implemented by collective agreements, rather than legislation, although this is unlikely to prove an attractive route for the UK Government.