Need to Know - Issue 5 2017

Psychometric tests: do adjustments have to be made for disabled applicants?

In the case of the Government Legal Service v Brookes, the Employment Appeal Tribunal found that that GLS was discriminatory in not making adjustments to its standard psychometric tests for an applicant with Asperger’s Syndrome. This decision will be of interest to all employers who rely on this method to recruit applicants.

Whether an employer considers a disclosure to be protected is not relevant

A disclosure is protected if it is deemed to be qualified. A disclosure is qualified if it meets any one of six criteria defined by statute including the disclosure of information which shows that the health or safety of any individual has been, is being or is likely to be endangered. The Employment Appeal Tribunal, in the case of Beatt v Croydon Health Services NHS Trust, overturned the decision of the Employment Tribunal, stating that conduct was the reason for dismissal of the claimant, not the protected disclosures. The Court of Appeal has overturned the decision of the Employment Appeal Tribunal, agreeing with the Employment Tribunal.

Fiduciary duties and remedies: a cautionary tale

The Court of Appeal recently had the opportunity to consider fiduciary duties, which apply to company directors and certain other senior employees. While the Court did not state any new principle, the case of Clegg serves as a strong reminder of the gravity of these duties, and the power of the remedies available for their breach. In this case, the claimant sought an account of the profits his business partner accrued in breach of the fiduciary duty not to profit from his position at the company’s expense, extending to a sum in the hundreds of thousands of pounds which would not be recoverable on ordinary contractual principles.

Father wins his direct sex discrimination case after being denied shared parental leave at full pay

In the Employment Tribunal case of Mr M Ali v Capita Customer Management, Mr Ali took his two weeks’ paternity leave immediately following the birth of his child. His wife was diagnosed with post-natal depression and she was advised to return to work to assist her recovery. Mr Ali asked his employer whether he could take shared parental leave to care for his child, which his employer confirmed he could but that he would be only paid statutory shared parental pay. Mr Ali raised a grievance complaining that he had suffered sex discrimination as he believed he should receive the same benefit as female employees taking maternity leave who, under the employer’s maternity policy, were entitled to enhanced maternity pay of 14 weeks’ full pay. Mr Ali’s grievance was rejected and he brought sex discrimination claims.