Need to Know - Issue 3 2017

Multiple choice recruitment test was discriminatory

In the case of Government Legal Service v Brookes, the Employment Appeal Tribunal (“EAT”) has upheld the decision of an Employment Tribunal (“ET”) that a job applicant with Asperger’s syndrome was discriminated against by being required to sit a multiple choice ‘Situational Judgment Test’ (“SJT”) as the first stage in a competitive recruitment process for the position of trainee solicitor.

Redundancy: employers should take flexible working arrangements into account when considering alternative roles

The case of Fidessa Plc v Lancaster (EAT) is a reminder to employers that they should take any existing flexible working arrangements into account when consulting with employees about alternative roles in a redundancy situation.

Managing Long-Term Sickness: Disability and Dismissal

Long-term sickness can be a challenging issue for employers and employees alike. This is all the more so given potential overlap between the Employment Rights Act 1996 (“ERA 1996) and the Equality Act 2010 (“EA 2010”) where the illness qualifies as disability under section 6 of the latter legislation. In such circumstances, a prudent employer will be keen to avoid claims of both unfair dismissal and discrimination arising from disability. When a decision is made to dismiss an employee on the basis that they are no longer capable of fulfilling the role, the employer will need to act both fairly and reasonably, and proportionately to a legitimate aim, as explored in the recent case of O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145.

Court of Appeal Judgment on Subject Access Requests

Following on from last month’s judgment in the case of Dawson-Damer[1], the Court of Appeal (“CoA”) has given further guidance on Subject Access Requests (“SARs”) in the cases of Ittihadieh[2] and Deer[3]. In particular the CoA offered guidance for employers on how far they must go in searching for data when responding to a SAR whilst granting discretion to the courts to consider a variety of factors when assessing a SAR.