Is your recruitment process up to date?

The Equality Act 2010 banned the common practise of employers seeking medical information about potential employees.

The medical questionnaire had become a common feature for those seeking employment. The range of information sought has frequently been extensive with detailed questions covering an applicant’s medical history.

Many disabled people are thought by the Government to be discouraged from pursuing a job application in such circumstances. It was for this reason that The Equality Act which has consolidated the law on discrimination included a section which requires employers not to ask such questions of job applicants except in very limited circumstances.

Employers who fail to take heed of this could face an investigation from The Commission for Equality and Human Rights and the service of an unlawful act notice.

Experience tends to suggest however that the commission is unlikely to concentrate its fire on small and medium sized enterprises (SME’s) certainly in the short term but will instead concentrate on the major players.

In any event it would be a mistake for SME’s to ignore this issue. The reason for that is quite simple. If medical questions are asked contrary to the prohibition and Tribunal proceedings are brought what lawyers call the burden of proof is likely to be reversed. In other words the employer will have to prove that there was no discrimination and that may not be easy. The only certainty is that it will be expensive. All employers should therefore carefully review their recruitment procedures.

Medical Questionnaires

The Equality Act 2010 banned the common practise of employers seeking medical information about potential employees.

The medical questionnaire had become a common feature for those seeking employment. The range of information sought has frequently been extensive with detailed questions covering an applicant’s medical history.

Many disabled people are thought by the Government to be discouraged from pursuing a job application in such circumstances. It was for this reason that The Equality Act which has consolidated the law on discrimination included a section which requires employers not to ask such questions of job applicants except in very limited circumstances.

Employers who fail to take heed of this could face an investigation from The Commission for Equality and Human Rights and the service of an unlawful act notice.

Experience tends to suggest however that the commission is unlikely to concentrate its fire on small and medium sized enterprises (SME’s) certainly in the short term but will instead concentrate on the major players.

In any event it would be a mistake for SME’s to ignore this issue. The reason for that is quite simple. If medical questions are asked contrary to the prohibition and Tribunal proceedings are brought what lawyers call the burden of proof is likely to be reversed. In other words the employer will have to prove that there was no discrimination and that may not be easy. The only certainty is that it will be expensive. All employers should therefore carefully review their recruitment procedures.

Can Ronaldo sue FIFA for discrimination?

Ronaldo Luiz Nazario de Lima, simply known to millions as Ronaldo and undoubtedly one of footballs greatest players retired from football earlier this week at the age of 34.

One of the main reasons that Ronaldo gave for his retirement was that he has been unable to manage his injury problems in recent years. One major factor in the number of injuries that he picked up was his weight gain, something which has on occasions been raised as a reason for underperformance.

Ronaldo was diagnosed with hypothyroidism approximately 4 years ago in 2007 and, as Ronaldo himself reported “To control it, I was told I would have to take some hormones that are not permitted in football because of antidoping”.

One of the treatments that are given to people suffering with hypothyroidism is Human Growth Hormone (HGH) which are generally considered as a banned substance in most professional sports. The question however is if a person requires treatment by way of drugs, is it right that they can be prevented from following a treatment path that is better for their health just because of the rules and regulations of an organisation or an employer.

In the UK there is some protection for employees with disabilities thanks initially to the
Disability Discrimination Act and now the Equality Act. However, for a mental or physical impairment to be consider as a disability you have to have been suffering it for a period of at least 12 months, are likely to continue suffering from it for at least a further 12 months and it must have an adverse effect on your day to activities such as mobility or concentration. If you do have a disability then you are at least protected from being treated less favourably than those who do not have a disability.

So is hypothyroidism a disability? If left untreated it can cause the sufferer to enter a coma and can cause death but that aside sufferers are also at a greater risk of having high cholesterol, heart disease and emotional depression, something which on its own can be a disability.

According to FIFA a footballer can apply for a therapeutic use exemption (TUE) although by applying there is no guarantee that a person requiring the treatment will get it. The FIFA website, which has not been updated since 3rd May 2007, states that “The granting body for this application differs according to your status as a player, be it domestic national or international.” By that can it be interpreted then that exemptions are not based on the need but the status of the player involved?

In reality there is an argument that had Ronaldo been playing in the UK and not been selected for a team on the basis that his weight and proneness to injury affected his performance, that he could have taken action against his employers on the grounds of discrimination. If a professional sportsperson were to lodge Employment Tribunal proceedings for discrimination against their employers, effectively their club, then it would be time for sports governing bodies and their policies to be challenged for being discriminatory.

More Holiday?

The Working Time Regulations 1998 as amended provide that all workers are entitled to 5.6 weeks of paid holiday. That amounts to four weeks normal holiday and a further 8 days being equivalent to 1.6 weeks for a worker who works five days per week so as to make up the total. Someone working part time on say 3 days per week would therefore be entitled to 5.6 x 3 =16.8 days holiday. The fraction of a day is rounded up to a whole day giving 17 days holiday in total. If that worker works on a Monday Tuesday and Wednesday each week then in 2010 5 bank holidays were on a Monday and those will reduce the entitlement to 12 days.

According to Regulation 13 (9) holiday or leave as the Regulation prefers to call it, can only be taken in the year in respect of which it is due. In other words it cannot be carried over to the next year and if it is not taken it is lost. You might therefore think that if someone booked his holiday at the end of a leave year but because of illness was unable to take that holiday, it would be lost where he did not return to work until the following leave year. However it is now clear that such a conclusion would be incorrect and the worker would be entitled to carry his holiday over into the next year and take it together with his new holiday entitlement for that year. This is because the European Court in a case called Pereda v Madrid Movilidad decided that The Working Time Directive required every worker to have 4 weeks holiday and if he was ill during that period then he could convert that period in to sick leave and take his holiday again later and even in the next leave year. An English Tribunal has now decided that they will follow Pereda so that being ill on holiday is no longer bad luck.

Redundancy - Whats the score?

At a time where many businesses need to make redundancies to stay afloat, employers must be aware of what makes the redundancy and the redundancy process fair.

Any redundancy situation can be stressful and deflating for the staff so the more open and consultative you are, the more at ease your employees are likely to be. Where you employ 20 or more employees if you propose making redundancies, you must allow for a 90 day consultation period.

Employers have to make sure that the whole redundancy process and selection criteria are fair and objective. Make sure that your redundancy policy and procedures are up to date and followed by all involved.

The selection criteria should be agreed with employee reps and should include things such as attendance and disciplinary records, skills or experience, standard of work performance and aptitude for work. Use a scoring matrix and apply it to those affected.

Once the employees who will be made redundant have been identified, make sure they are given the appropriate notice and allowed the opportunity to appeal the decision.

If employees ask, tell them their scores. Even other people’s scores within the selection pool can be disclosed provided of course they remain anonymous. Where you don’t tell an employee their score, you run the risk of having the redundancy found to be unfair.