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The questions which arose in the case of Wilcox v. Birmingham CAB Services Ltd were whether an employer had a duty to make adjustments to suit a disabled employee, despite having no knowledge of the disability at the time, and what knowledge, if any, would give rise to a duty to make reasonable adjustments?

The claimant made a request in 2007 to move to an alternative workplace which was closer to home, which was refused, the following day the claimant fell absent due to work-related stress, though at this stage there was no mention of any travel anxiety. The claimant then raised a grievance once the company had commenced its management attendance procedure, and subsequently delayed her employer’s attempts to get a medical report, but later agreed that her cognitive behavioural therapist could provide one. In this particular medical report it was stated that the claimant suffered from travel anxiety and suggested a short car journey to work. The company offered various possible solutions to the claimant, none of which were deemed suitable by her. In 2008 a meeting was held to discuss possible termination on the grounds of capability. The claimant refused a request by the employer to be examined by occupational health and later resigned, claiming constructive dismissal and a breach of the duty to make reasonable adjustments.

As the employer did not have actual or constructive knowledge of the claimant’s disability at the time, the EAT dismissed all claims and held that the employer was not under a duty to make reasonable adjustments. The EAT also held that the cognitive behavioural therapist’s report referring to an anxiety disorder was not sufficient to confer such knowledge; the claimant was reluctant to acknowledge a mental health condition; and she accepted that she had delayed her employers attempts to obtain a medical report.

Under S.4A of the Disability Discrimination Act 1995 an employer was not under a duty to make reasonable adjustments if he does not know, and is not reasonably expected to know that an employee is disabled and is likely to be at a substantial disadvantage compared to non-disabled employees as a result. This position is now reflected in paragraph 20 of schedule 8 to the Equality act 2010.

Justine Watkinson, Partner and Head of the Employment Law Department at Hillyer McKeown LLP, states that “when making decisions, employers should always seek up-to-date medical advice where concerns have arisen. The EAT stressed the fact-specific nature of this case, and highlighted that where an employee fails to provide information or obstructs the employer’s attempts to obtain medical evidence, it may be more difficult in attributing knowledge of any disability to the employer”.

As a means of achieving budgeting costs and strengthening front-line policing, Prime Minister David Cameron has made his most decisive comments yet with regards to his plans of cutting HR jobs within the UK police forces.

The general observation by commentators is that there could be significant problems caused by replacing HR officers with civilians. Martin Tiplady, former HR director of the Metropolitan Police has explained that there will always be a significant requirement for policemen in HR, and drew a parallel with soldiers with front line experience being needed to train army recruits, and police recruits needing to be assessed and trained by experienced police officers.

Ian Hanson, chairman-elect of the Greater Manchester branch of the police Federation, said, “There is no more slack to cut”, however Prime Minister David Cameron has insisted that he wants to put “more into the teeth and less into the tail.”

Former Chief Constable of Gloucestershire claims that the Government grant for policing will fall by £1.36bn or 14% which will see a reduction of about 16,000 officers, which is coincidentally the number of officers needed to police the streets in the recent riots. It is in the wake of these riots that the greatest opposition comes to Cameron’s police cuts, and more than two-thirds of people are opposed to the proposed cuts according to a recent poll.

Following a decision by the Employment Appeal Tribunal (EAT) in the case of Leeds v. Larner, it has been confirmed that where an employee has been off sick for an entire holiday year, statutory holiday leave can be carried over to the following holiday year, despite failing to make a request for leave during sickness absence. The key consideration for the Employment Appeals Tribunal was whether by failing to ask for leave, Mrs Larner had lost her entitlement to it under the Working Time Regulations (Regulation 13). Following the ECJ decision in Pereda, it was held that she had not, and that by virtue of being on sick leave she did not have the opportunity to use her holiday entitlement.

This was contrasted with the position of a fit worker who fails to request statutory holiday leave during the year who may lose their holiday entitlement if the contract so provides, having had the opportunity to exercise statutory holiday rights.

This ruling also confirms that employees on Permanent Health Insurance (PHI) may be able to carry over several years’ worth of holiday entitlement and be paid in lieu on termination. In the non-binding opinion given by the Advocate General of the ECJ in KHS v. Schulte , it was stated that Member States can lawfully require that carried over leave be taken within the following 18 months, or else be extinguished.

Justine Watkinson, Partner and Head of the Employment Law Department at Hillyer McKeown LLP says that “in light of this decision, employers will therefore hope that the ECJ is in agreement, and that when the Government amends the regulations following recent case law developments, it will choose to follow the option of the Advocate General of the ECJ in KHS v Schulte. Since the EAT failed to address the matter of how this sits with the Working Time Regulations 1998 which expressly prohibits carry over, it seems likely that further litigation on this matter will ensue, unless the WTR are amended”.

The Government has unexpectedly published its final draft of guidance for hirers and agencies on the Agency Workers (Amendment) Regulations 2011 to amend the Agency Workers Regulations 2010 (AWR) which will come into force on the 1st of October 2011.

The amendments are certain to have a significant impact on the relationships between the hirer, the agency and the worker. The amended Regulation 5 gives temporary agency workers comparable rights in respect to basic working conditions and employment conditions relating to pay, working hours, overtime, breaks, rest periods and annual leave, as direct recruits of the hirer. In addition to this right, Regulations 12 and 13 provide that a hirer will be responsible for providing collective facilities and amenities such as staff restaurants and crèche facilities and information of any permanent vacancies must also be given to agency workers from ‘day one’. Under these regulations pension provisions and occupational sick pay do not form part of the definition of ‘equal treatment’ and the employment status of temporary agency workers does not change.

To qualify for the AWR Regulation 5 rights, the worker must work a 12 week qualifying period.

The continuity of the 12 week qualifying period will be broken when:

• There is a six week break between assignments or in the same job; or
• Where an agency worker takes up a new role with the same hirer, where the majority of duties are substantially different to the duties in the previous job.

Breaks due to illness, maternity or pre determined closure periods will not break the qualifying period.

It should be noted that there is an exemption under the AWR from the obligation to provide equality of pay to agency workers who are employed on permanent contracts of employment by a temporary work agency and paid between assignments if available to work.

Businesses that make use of agency workers should now be assessing the impacts that the amended Regulations will have on them. Arrangements for compliance with the regulations should be made and the cost implications on the business will need to be given thought. One way in which businesses may look to reduce cost burdens is to pass them on to the agency supplying the workers by way of reduced fees, particularly if the hirer negotiates a considerable number of workers to be taken on.

The Regulations may also have an effect on businesses which outsource services to a third party who in turn use temporary agency workers. If the contract is costed on an ‘open book’ basis, service providers may also look to pass on their increased costs.

Hirers should revisit any contracts and other documentation which have already been drafted, to see if they need amending in light of the changes made by the Amendment Regulations.

The decision of Wray v JW Lees has been handed down by the Employment Appeals Tribunal. The case is authority for whether time spent on an employer’s premises over night, specifically to deal with emergencies qualifies as “working time” for the purposes of being paid the national minimum wage which depended solely on the relevant provisions of the National Minimum Wage Regulations 1999.